The Competition Amendment Act 2023 is easiest to misunderstand in a single sentence, and the sentence most often used for it is wrong. The sentence says that in 2023 India rewrote its competition law. In truth the Competition (Amendment) Act 2023, Act 9 of 2023, changed the parent statute in four distinct waves spread across sixteen months, and an adviser who treats the whole package as law from the date of assent, 11 April 2023, will give wrong advice on mergers, on penalties and on procedure. The amendment is a trail, not an event, and this article walks the trail in the order in which the changes took legal effect.

Three of the changes alter the economics of every transaction and every defence strategy in Indian competition law. A deal value threshold pulls large acquisitions of low revenue targets into merger review for the first time. A redefinition of turnover for penalty purposes displaces a Supreme Court construction and measures the maximum fine by worldwide revenue from all products and services. A settlement and commitment mechanism offers parties in vertical agreement and dominance cases a negotiated exit that Indian competition law had never allowed, while expressly withholding that exit from cartels. Around those three sit a set of supporting changes: hub and spoke cartel coverage, a leniency plus incentive, a three year limitation period, a deposit requirement for appeals, a shortened merger clock, and a transfer of the power to appoint the Director General to the Commission itself.

The parent statute, its prohibitions, its Commission and its appellate structure are the subject of the pillar article on the Competition Act 2002, which owns that text. This article owns only what the 2023 amendment changed, why each change was made, and the date from which each change binds. The field into which the amendment lands, the industrial and competition law of India read as one subject, is mapped in the guide to industrial and competition law in India, and nothing in this article repeats the parent Act exposition that those two articles carry.

The road to the amendment: a review committee, two Bills and one clarification

The amendment began as an exercise in stocktaking. In 2018 the Ministry of Corporate Affairs constituted the Competition Law Review Committee, chaired by Injeti Srinivas, the Secretary of that Ministry, and charged it with examining whether the Competition Act 2002, by then a decade into enforcement of its conduct provisions, remained fit for the economy it regulated. The Committee reported in July 2019. Its recommendations supplied nearly the whole architecture of the eventual amendment: a deal value threshold to catch acquisitions that the asset and turnover tests missed, a settlement and commitment mechanism to close cases without a full contest, a governing structure for the Commission, changes to the penalty framework, and a transfer of the appointment of the Director General from the Central Government to the Commission, whose investigative arm the Director General heads.

The Committee’s reasoning on the Director General states the institutional point plainly. The framework it inherited envisaged a Director General appointed by, and accountable to, the Central Government rather than to the Commission on whose direction every investigation runs. The Committee observed that such a separation between the investigative and adjudicative functions of a regulator was not the pattern in several international competition authorities or in other Indian regulators. The recommendation was not that the government surrender all say in the appointment: the eventual design keeps a prior approval of the Central Government. It was that the appointing hand should be the Commission’s.

A Bill followed in 2022, and a revised Bill in 2023, and the difference between the two drafts contains the single most consequential clarification in the merger provisions. The deal value threshold turns on the target of a transaction having substantial business operations in India. An early formulation left room to argue about which side of the transaction had to carry that Indian footprint. The Bill of 2023 settled the question: it is the enterprise being acquired, taken control of, merged or amalgamated, the target, that must have substantial business operations in India, not the acquirer. The clarification matters because the acquisitions the threshold was designed to catch are precisely those in which a large acquirer, often with a modest Indian presence of its own in the relevant line, buys a target whose value lies in its Indian users, data or growth. Had the test attached to the acquirer, the threshold would have missed its stated object.

Parliament passed the Bill in the budget session of 2023, and the President assented on 11 April 2023, making the amending Act Act 9 of 2023. Assent, however, was not commencement. The Act left its own provisions to be brought into force by notification on dates the Central Government chose, and that choice produced the staggered pattern that defines the trail. Four dates carry almost the whole story. The first set of provisions took effect on 18 May 2023. The appointment of the Director General followed in July 2023. Leniency plus took effect on 20 February 2024, and the settlement, commitment and penalty provisions on 6 March 2024. The merger control package, the deal value threshold, the control definition and the shortened timelines, took effect on 10 September 2024 with the Competition Commission of India (Combinations) Regulations 2024 and the rules made alongside them.

What is the single most consequential change in the 2023 amendment?

The penalty base. A contravention confined to one product can attract a penalty measured against the enterprise’s global turnover from all products and services, because the amendment defines turnover for Section 27 by reference to worldwide revenue and displaces the Supreme Court’s relevant turnover construction in Excel Crop Care.

The first wave, 18 May 2023: conduct, limitation and the price of an appeal

The provisions commenced in May 2023 were mostly clarificatory, but three of them have daily consequences. The first widened the cartel prohibition. Section 3(3) of the parent Act presumes that specified horizontal agreements, price fixing, output limitation, market allocation and bid rigging, cause an appreciable adverse effect on competition. As originally framed, the clause spoke of enterprises engaged in identical or similar trade, and a facilitator standing outside that trade, a trade association, a platform, a consultant, an agent, could argue that the presumption did not reach it even where it organised the arrangement. The amendment extends the clause to an enterprise or person who participates or intends to participate in the furtherance of such an agreement although not engaged in identical or similar trade. That is the statutory home of the hub and spoke cartel, examined in its own section below.

The second introduced a limitation period for the filing of information. An informant must file within three years of the date on which the cause of action arose, with the Commission empowered to condone delay where sufficient cause is shown. Before the amendment the Act fixed no such period, and stale complaints about arrangements long dissolved were a standing grievance of respondents. The third fixed the price of an appeal. An appellant to the National Company Law Appellate Tribunal against an order imposing a penalty must deposit twenty five per cent of the penalty amount before the appeal is entertained. The deposit is a condition of entertainment, not of filing, and its purpose, as the debate around it made plain, was to discourage appeals lodged principally to hold a penalty in suspension.

The same wave carried definitional repairs that practitioners feel without noticing. The definition of relevant product market was amended to recognise supply side substitutability alongside the demand side factors it had always listed. A definition of party was inserted, wide enough to cover consumers, trade associations, informants and persons impleaded into proceedings. References in definitions to the Companies Act 1956 were replaced by the corresponding provisions of the Companies Act 2013. None of these repairs changed the direction of the law; all of them removed arguments that had consumed hearing time.

One further May 2023 change deserves recording because it disciplines the Commission as much as parties. The amendment requires consultation with stakeholders before regulations are made, and it bars the Commission from inquiring into an agreement or an abuse of dominance where the same or substantially the same facts and issues have already been decided in an earlier order. Both are rule of law provisions rather than enforcement provisions, and both were recommended in substance by the Review Committee’s insistence that a young regulator’s powers grow alongside its procedural obligations.

The deal value threshold: merger control learns to count value

Merger control under the parent Act rested on size measured in two ways: the assets and the turnover of the parties, tested against thresholds in Section 5. That design has a known blind spot. An acquisition target may be worth a very large sum while owning few assets and earning little revenue, because its value sits in users, data, technology or expected growth. Acquisitions of such targets, the pattern the debate calls killer acquisitions when the target is a nascent competitor, passed below the asset and turnover thresholds and were never notified, however large the price the acquirer was willing to pay and however clear the signal that price sent about expected market power.

The Review Committee identified the gap, and the amendment fills it with a new limb of Section 5, clause (d). A transaction whose value exceeds two thousand crore rupees is a combination if the enterprise being acquired, taken control of, merged or amalgamated has substantial business operations in India. The threshold operates in parallel with the asset and turnover tests. It does not replace them, and it is not a safety net that applies only when they fail; a transaction must be tested against every limb, and notification is required if any limb is crossed. Two features of the drafting deserve emphasis. The first is that the value threshold counts the value of the transaction, a figure the Combinations Regulations 2024 define generously, as the next sections explain. The second is that the small target exemption, the de minimis dispensation that protected acquisitions of enterprises below prescribed asset and turnover floors, does not rescue a transaction that crosses the deal value threshold. The exemption was the very route by which small but expensive targets escaped review, and the amendment closes it for this limb.

The threshold figure itself, two thousand crore rupees, was chosen against the mischief. It is high enough that ordinary acquisitions of small enterprises remain outside the net, and low enough that the acquisitions of venture backed digital and technology targets that prompted the reform, priced in the hundreds of millions of dollars, fall inside it. Whether the line is correctly drawn is contested, and the contest is set out later in this article. What is not contested is the direction: Indian merger control, like the merger control of Germany and Austria which adopted transaction value tests earlier, accepts that price is information about expected market significance that balance sheets may not yet record.

When did the deal value threshold begin to apply?

On 10 September 2024. The Ministry of Corporate Affairs brought the combination provisions of the amendment into force on that date together with the Competition (Combinations) Regulations 2024, the de minimis rules and the green channel rules, so the threshold and the machinery for testing it commenced as one package.

Substantial business operations: the ten per cent tests

A value threshold without a territorial anchor would pull purely foreign transactions into Indian filing rooms whenever an Indian party or an Indian price tag appeared. The anchor the amendment chose is substantial business operations in India, and the Combinations Regulations 2024 convert that phrase into arithmetic. The test is applied to the target, and it is satisfied by any one of the prescribed limbs.

For an enterprise providing digital services, three alternative limbs apply, each a ten per cent test with no separate rupee floor. The number of business users or end users of the target in India is ten per cent or more of its total global number of such users. Or the gross merchandise value of the target in India for the twelve months preceding the relevant date is ten per cent or more of its total global gross merchandise value. Or the turnover of the target in India in the preceding financial year is ten per cent or more of its total global turnover derived from all products and services. The relevant date is, in outline, the date of the board approval for a merger or amalgamation or the execution of the agreement or document for an acquisition or acquiring of control.

For enterprises outside the digital sector the same value and turnover proportions apply with an added floor: the Indian gross merchandise value, or the Indian turnover, must also exceed five hundred crore rupees. The asymmetry is deliberate and discloses the reform’s target. Digital businesses monetise late; their Indian user bases and transaction values are large fractions of their global figures long before Indian revenue crosses any rupee floor, and a floor would have excluded the very targets the threshold exists to catch. A conventional business, by contrast, is expected to show a substantial Indian operation in money terms before a foreign priced deal is called into Indian review.

The practical consequence for deal teams is a new diligence discipline. The parties must assemble, for the target, global and Indian figures for users, merchandise value and turnover on consistent definitions, and must do so early, because the answer determines not only whether a filing is needed but which form the filing takes and whether the transaction can close without approval. A filing failure is not a technicality: closing a notifiable combination without approval exposes the parties to gun jumping proceedings and penalty, and the standstill obligation runs from notification until approval or the expiry of the statutory period.

Control as material influence, the value of a transaction, and the shortened clock

Three supporting changes complete the merger package. The first concerns control. Section 5 asks whether a transaction amounts to acquiring control, and the amended explanation defines control as the ability to exercise material influence over the management or affairs or strategic commercial decisions of the target. Material influence is the lowest of the standards the law recognises, below decisive influence and below the negative control that a bundle of veto rights can confer. The Review Committee recommended the alignment because the Commission’s decisional practice had already gravitated toward material influence while the statute’s language invited argument for a higher threshold. The consequence is that minority acquisitions carrying board representation, information rights or vetoes over strategic decisions must be tested against the control limb with more care than their shareholding percentage suggests.

The second concerns what counts as the value of a transaction. The Regulations treat value as every valuable consideration, direct or indirect, immediate or deferred, in cash or otherwise. Consideration agreed for covenants and restrictions imposed on the seller counts. Consideration for interconnected steps counts. Consideration for arrangements forming part of the transaction or incidental to it, including technology assistance, licensing of intellectual property, usage rights, supply arrangements and branding, payable during two years from the date the transaction takes effect, counts. Call options are valued assuming full exercise, and amounts dependent on future outcomes are taken at best estimate. A deal team that prices only the share purchase will understate the figure the Commission will use, and the threshold question must therefore be asked on the whole package of documents rather than on the lead agreement.

The third concerns time. The outer period within which the Commission must pass its order on a notified combination fell from two hundred and ten days to one hundred and fifty calendar days, after which the combination stands deemed approved. The period for forming a prima facie opinion at the first phase fell from thirty working days to thirty calendar days. The direction matches the rest of the package. Parliament was willing to widen the net considerably; in exchange it shortened the period for which a notified transaction can be held in suspense, and deal lawyers who feared that a wider net meant longer uncertainty received in the same statute a tighter clock.

Does the amendment catch a transaction signed before 10 September 2024?

In part. The combination provisions were applied to transactions that had not closed by that date even where the documents had been executed earlier, so a signed but unclosed deal crossing the threshold required notification, while steps already closed under a multi step transaction were protected from gun jumping penalty.

What changed and from when: the amendment in one table

The commencement pattern is the amendment’s most distinctive feature and the one most often misstated, so the changes are set out here with the position before, the position after, the operative date and the practical consequence of each.

Change	Position before	Position after	Operative from	Practical consequence
Hub and spoke coverage, Section 3(3)	Presumption reached enterprises in identical or similar trade	Facilitators who participate or intend to participate in furtherance are covered	18 May 2023	Trade associations, platforms and agents face cartel exposure
Limitation for filing information	No period fixed by the Act	Three years from the cause of action, delay condonable for sufficient cause	18 May 2023	Stale complaints can be refused; informants must move promptly
Deposit for penalty appeals	No statutory deposit condition	Twenty five per cent of the penalty deposited before the appeal is entertained	18 May 2023	Appeals no longer hold a penalty in suspension for free
Appointment of the Director General	Appointed by the Central Government	Appointed by the Commission with the prior approval of the Central Government	18 July 2023	The investigator answers to the Commission that directs the inquiry
Leniency plus, Section 46	Lesser penalty for disclosing one cartel	Additional reduction of up to thirty per cent on the first cartel for disclosing a second	20 February 2024	A second disclosure buys relief in two cases at once
Penalty base, Section 27	Turnover construed as relevant turnover in Excel Crop Care	Ceiling measured on global turnover derived from all products and services	6 March 2024	Exposure of a diversified group is no longer confined to the affected product
Penalty determination method	No statutory guidelines	Monetary Penalty Guidelines 2024 structure the discretion from a relevant turnover starting point	6 March 2024	Penalty submissions argue within a published framework
Settlement and commitment, Sections 48A and 48B	No mechanism in the Act	Negotiated closure for Section 3(4) and Section 4 cases; cartels excluded	6 March 2024	Dominance and vertical cases can end without a contested order
Deal value threshold, Section 5(d)	Size tested by assets and turnover alone	Value above two thousand crore rupees with substantial business operations in India is notifiable	10 September 2024	Expensive low revenue targets enter merger review
Definition of control	Control over affairs or management	Ability to exercise material influence	10 September 2024	Minority stakes with strategic rights need a control analysis
Merger review outer period	Two hundred and ten days	One hundred and fifty calendar days, deemed approval thereafter	10 September 2024	A wider net is paired with a shorter suspense period
Application to pending transactions	Not applicable	Signed but unclosed transactions brought within notification; closed steps protected from gun jumping penalty	10 September 2024	Deal documents executed before commencement do not grandfather a closing after it

Hub and spoke: the facilitator enters Section 3(3)

A hub and spoke cartel is an arrangement in which competitors who do not deal with each other directly coordinate through a common third party. The hub, a supplier, a distributor, a platform or an association, passes pricing intentions, output plans or bid strategies between the spokes, and the horizontal restraint the law condemns is achieved without a horizontal conversation. Under the parent Act the structure created a pleading problem. Section 3(3) presumed an appreciable adverse effect for agreements between enterprises engaged in identical or similar trade, and the hub, by definition engaged in a different trade from the spokes, stood outside the presumption and had to be pursued, if at all, through the general prohibition with its fuller burden of proof.

The amendment, in force from 18 May 2023, rewrites the reach of the clause. An enterprise or person who is not engaged in identical or similar trade is treated as part of the Section 3(3) agreement if that enterprise or person participates or intends to participate in the furtherance of the agreement. Two elements of the language carry the weight. Participates is a conduct element, satisfied by the middleman who transmits the coordinating signal, hosts the meeting, circulates the price list or disciplines a deviating spoke. Intends to participate reaches the facilitator whose role is proved by preparation rather than by a completed act of transmission. Furtherance ties both to the horizontal object: the facilitator’s act must advance the competitors’ arrangement, not merely coincide with it.

The consequences distribute widely. Trade associations, long treated in Commission practice as convenient venues for coordination, hold express statutory exposure. Platforms that intermediate between sellers acquire a competition law reason to police the information their systems pool and surface. Professional advisers and agents who carry messages between bidders in a procurement cartel can no longer rely on their status outside the trade as a defence. The provision does not abolish the prosecution’s burden on the underlying agreement: the existence of the horizontal arrangement, and the facilitator’s participatory link to it, must still be proved, and the presumption that follows assists on effect rather than on existence. What the amendment removes is the structural immunity of the person in the middle.

Settlement and commitment: a negotiated exit, withheld from cartels

Indian competition law, as the Review Committee found, offered a party under inquiry two endings only: exoneration or a contested order followed by appeal. Every case consumed the full apparatus of investigation, hearing and defence however early the party was willing to change its conduct, and the Commission’s docket filled with matters whose market harm could have been corrected years before the final order. The amendment borrows the remedy used by mature regimes and splits it by stage. Sections 48A and 48B, brought into force on 6 March 2024 together with the Settlement Regulations 2024 and the Commitment Regulations 2024, create the two mechanisms.

Commitment is the early route. Where an inquiry has been initiated for an alleged contravention of Section 3(4), the vertical agreements provision, or Section 4, the prohibition of abuse of dominance, and the Commission has directed the Director General to investigate, the party may offer commitments before the investigation report reaches the Commission. The offer must propose terms that correct the conduct and its market consequences. The Commission invites objections and suggestions, assesses whether the terms are sufficient, and if it accepts them it passes an order closing the inquiry on those terms, with machinery for monitoring implementation and for revoking the order where the party does not implement the terms or obtained them by suppressing material facts. A commitment order involves no penalty and no finding pressed to a contested conclusion, and the market correction arrives at the speed of negotiation rather than litigation.

Settlement is the later route. A party against whom the Director General’s investigation has found a contravention of the same provisions may apply for settlement after receiving the investigation report and before the Commission passes its final order. Settlement is an admission based bargain: the applicant accepts the framework of the case and pays a settlement amount computed under the Settlement Regulations in place of the penalty a contested order would impose, and the Commission closes the matter by a settlement order. The statute also connects settlement to compensation: a person harmed by the conduct may pursue a compensation application on the strength of the settlement, which is a material part of the price an applicant pays for closure and a point any board weighing a settlement application must price in.

Two boundaries define both mechanisms. The first is that cartels are excluded. Neither route is open in a Section 3(3) case, on the reasoning, stated openly in the debates, that the gravest horizontal conduct should be met by investigation and penalty, assisted by the leniency programme, and not by bargain. Parties are routinely surprised by the exclusion because settlement in other regulatory fields carries no such carve out; in this statute the carve out is express. The second boundary is finality: an order accepting a settlement or a commitment is not appealable, so the applicant trades its appellate rights for speed and certainty, and the Commission’s acceptance decision is correspondingly the moment at which the applicant’s advisers must have completed their assessment of the bargain.

Are cartels eligible for settlement or commitment under the amendment?

No. Both mechanisms are confined to inquiries under Section 3(4) on vertical agreements and Section 4 on abuse of dominance. Section 3(3) cartel cases are expressly outside them, and a cartel participant’s negotiated route remains the leniency programme under Section 46.

Leniency plus: a second disclosure buys relief in the first case

The leniency programme under Section 46 is the Commission’s principal instrument against cartels, whose secrecy defeats outside detection. A cartel participant who makes a full, true and vital disclosure can receive a lesser penalty, graded by priority and by the value the disclosure adds. The amendment, effective 20 February 2024 through the amended Section 46 and the Competition Commission of India (Lesser Penalty) Regulations 2024 which replaced the 2009 Regulations, adds a refinement aimed at a specific hesitation. A participant in two cartels, disclosing the first, had every incentive to stay silent about the second, because disclosure exposed it to a fresh case while buying nothing in the case already running.

Leniency plus reverses that arithmetic. An applicant that has made a disclosure in one cartel matter and then makes a full, true and vital disclosure of a second, previously unknown cartel, which enables the Commission to form a prima facie opinion about that cartel, may receive a reduction in the penalty in the newly disclosed cartel under the ordinary lesser penalty scale, which runs up to one hundred per cent for the disclosure that opens the case, and in addition a further reduction of up to thirty per cent of the penalty in the first cartel. The Commission, in fixing the additional reduction, weighs how likely the second cartel was to be detected without the disclosure. The design is candidly transactional: the state pays for information about an undetected cartel with a discount in a case it already holds, and considers the price worth paying because cartels that no participant reports are, in the general run, cartels that no outsider finds.

The 2024 Regulations also modernised the surrounding machinery, including a hearing before an application is rejected and a facility for an applicant to withdraw a lesser penalty application, a right the earlier regime did not confer and whose absence had deterred applicants unwilling to make an irrevocable confession at the threshold. Read together with the hub and spoke extension, the enforcement half of the amendment is coherent: the definition of who can be liable widened, the reward for informing deepened, and the exits offered by settlement and commitment were deliberately kept away from the conduct these two provisions police.

The penalty base: Parliament reverses Excel Crop Care

The centre of the amendment, by consequence if not by bulk, is a definition. Section 27(b) empowers the Commission to impose on an enterprise that has entered an anti competitive agreement or abused a dominant position a penalty of up to ten per cent of the average of the turnover for the last three preceding financial years. The section did not say turnover of what. In Excel Crop Care Limited v Competition Commission of India, decided on 8 May 2017 and reported at (2017) 8 SCC 47, the Supreme Court answered the question. The case arose from a cartel in aluminium phosphide tablets, where the Commission had imposed penalty at nine per cent of the total turnover of multi product manufacturers. The Court, in the judgment of Sikri J, with Ramana J concurring and adding a two step method of his own, held that turnover in Section 27(b) means relevant turnover: the turnover attributable to the products or services that are the subject matter of the contravention.

The reasoning was proportionality, and it was principled rather than textual in the narrow sense. A multi product enterprise that contravenes the Act in one small line of business, the Court reasoned, cannot justly be fined by reference to revenue earned in unrelated lines with which the contravention had nothing to do; such a penalty would be disproportionate to the contravention and would punish lawful activity. The appropriate method was to determine the relevant turnover first and then select a percentage within the statutory ceiling by reference to the nature and gravity of the conduct and the aggravating and mitigating circumstances. For six years that construction governed every penalty order in Indian competition law, and defence submissions on penalty quantum were submissions about the boundaries of the relevant market dressed as arithmetic.

The amendment displaces the construction by legislation. An Explanation inserted into Section 27 defines turnover, for the purposes of that section, as global turnover derived from all products and services. The words are chosen to answer the judgment. All products and services negates the restriction to the products concerned; global negates any restriction to Indian revenue. The change took effect on 6 March 2024, when the penalty provisions were notified together with the Competition Commission of India (Determination of Turnover or Income) Regulations 2024 and the Competition Commission of India (Determination of Monetary Penalty) Guidelines 2024.

The effect on exposure is best seen in the case the reformers had in mind. A digital platform group may earn modest revenue in India in the specific service under investigation while earning very large revenue worldwide across advertising, devices, commerce and subscriptions. Under Excel Crop Care its maximum penalty was ten per cent of the average Indian revenue of the affected service. Under the amendment the ceiling is ten per cent of the average global turnover from everything the enterprise sells, a figure that can be orders of magnitude larger, and an enterprise with no Indian turnover in the affected product at all is no longer beyond the reach of a meaningful penalty. For cartels the first proviso to Section 27(b) continues to permit the higher of three times the profit or ten per cent of the turnover for each year of the agreement’s continuance, and the redefined base feeds that comparison as well.

The 2024 Penalty Guidelines: how the new discretion is structured

A ceiling is not a method, and the sharpest professional criticism of the global turnover amendment was that it handed the Commission an enormous ceiling with no visible path from contravention to figure. The Monetary Penalty Guidelines 2024, issued under the amended Act’s guideline power, supply the path, and their structure is a partial reconciliation between the amendment and the judgment it displaced. The Commission begins, for a penalty under Section 27(b), with the relevant turnover or income of the enterprise for the three years preceding the year in which the investigation report is received. It then takes up to thirty per cent of that average relevant turnover as the base amount, and adjusts the base for the nature and gravity of the contravention, the nature of the industry or sector affected and its implications for the economy, and any other factor it considers appropriate. Where the amount arrived at is not sufficient to create deterrence, it may be raised, and where relevant turnover cannot be determined for the product or service in question, global turnover may be taken into consideration. Throughout, the statutory maximum of ten per cent of average global turnover operates as the cap.

The architecture deserves a careful reading because both camps in the penalty debate cite it. For the Commission and the government, the Guidelines show the global base functioning as a ceiling and a deterrent reserve rather than as the starting figure, with the working computation anchored in the turnover of the affected product in the manner Excel Crop Care required. For critics, a starting point that the decision maker may depart from upward, within a ceiling untethered from the affected market, preserves in discretionary form the exposure the amendment created in definitional form, and the proportionality question has been relocated rather than answered. Both readings are available on the text of the Guidelines, which is why the practical centre of penalty litigation has shifted to the reasons the Commission records when it moves away from the relevant turnover figure.

The case for and against the global base, stated fairly

The case for the amendment, as the Ministry of Corporate Affairs and the Commission have made it, runs as follows. Relevant turnover produces trivial penalties where the affected product earns little in India, which is the standard position of large digital firms whose Indian services are priced at zero to the consumer and monetised elsewhere in the group. Deterrence calibrated to the revenue of a free product is no deterrence at all. A penalty base that reflects the enterprise’s overall capacity, measured worldwide because the enterprise itself operates and accounts worldwide, aligns India with the practice of the European Union and other regimes that compute fining ceilings on total worldwide turnover. And the displacement of Excel Crop Care is not a repudiation of proportionality but a judgment, which a legislature is entitled to make, that proportionality in a deterrent penalty is a function of the offender’s scale and of the footprint of the offence.

The case against, as counsel for affected enterprises and a substantial body of commentary have made it, answers each step. A penalty measured on revenue from products and countries unconnected with the contravention is punitive rather than corrective and abandons the nexus between wrong and sanction that the Supreme Court treated as a requirement of a valid penalty. Diversified groups cannot quantify their exposure in advance, because the ceiling depends on the whole group’s accounts rather than on the business under scrutiny, and unquantifiable exposure distorts settlement decisions, insurance and deal pricing. The burden falls asymmetrically on conglomerates and foreign groups relative to single product domestic firms committing the identical contravention. And the proportionality objection that persuaded the Court does not lapse because a statute has spoken: it returns, in a constitutional case, as a challenge to the statute itself.

That return is not hypothetical. A challenge to the amended penalty provision, the Turnover Regulations and the Penalty Guidelines, brought by Apple in proceedings arising from the Commission’s investigation of its app store practices, is pending before the Delhi High Court, in which the provision is attacked as arbitrary and grossly disproportionate and its application to conduct predating the amendment is contested. The challenge’s pendency should be recorded accurately: the provision is in force, penalties are being computed under it, and its validity is under judicial examination at the same time. The question whether the new base will in the end be applied subject to proportionality discipline of the kind the courts apply to penalties generally is, at the time this trail closes, unresolved.

On the evidence available, this article’s verdict on the dispute is that the legislature was entitled to reject the proposition that relevant turnover is the only permissible base, and that the Guidelines’ method (start with the affected product, justify any departure, respect the ceiling) is a defensible reconciliation; but that the reconciliation holds only if the Commission in fact gives reasons tying any use of the global figure to the harm and the offender’s circumstances. A practice of reaching for the ceiling without that reasoning would recreate, in individual orders, the disproportionality Excel Crop Care condemned, and would invite the courts to supply by review the discipline the statute omitted.

Procedure rebuilt: limitation, the Director General and the deposit for appeals

Three procedural changes run through the enforcement sections of the amendment and are best read together, because each reallocates initiative between the informant, the Commission and the appellant. The limitation period has been covered above: information must be filed within three years of the cause of action arising, subject to condonation for sufficient cause. Its deeper effect is on the Commission’s own history. The early enforcement years produced inquiries into arrangements of considerable age, where documents had been discarded in ordinary course and witnesses scattered; a limitation rule converts that grievance into a threshold objection and forces informants, frequently competitors, to move while the evidence is fresh.

The Director General change is institutional. From a notification dated 18 July 2023, the amended Section 16 vests the appointment of the Director General in the Commission, acting with the prior approval of the Central Government, from a panel recommended by a search cum selection committee whose composition was adjusted by amendment of the recruitment rules so that the Commission’s Chairperson heads it. The Director General’s investigative powers were also restated on a self contained footing in the Act rather than borrowed from company law. The conduct of investigations, the Director General’s powers and the appellate route that follows a final order are traced in the article on CCI antitrust enforcement in India, and the point for this trail is narrower: the officer who investigates at the Commission’s direction is, after July 2023, the Commission’s appointee, and the accountability the Review Committee found misaligned has been formally corrected.

The deposit requirement, twenty five per cent of the penalty as a condition of the appeal being entertained by the Tribunal, completes the triangle. Read with the penalty base, its significance grows. A penalty computed against a global ceiling can be very large; a quarter of it, deposited before the merits are heard, is a serious sum even for a large group, and the provision changes the settlement calculus in the Commission’s favour at every earlier stage. Critics of the requirement argue that it prices a meritorious appeal as a financing decision and burdens the right of appeal the parent Act confers. Its defenders answer that the deposit is a fraction, that the Tribunal retains power over the balance, and that the pre amendment pattern, in which the filing of an appeal suspended a penalty indefinitely at no cost, had made appellate delay a rational strategy independent of merit. The provision was among the first commenced, on 18 May 2023, which itself indicates the priority the government attached to it.

A legislative override, and what kind of override it is

The penalty amendment belongs to a small and instructive class of Indian legislation: statutes that displace a judicial construction of an earlier statute. This series has met the device before, most sharply in the amendment that answered a Supreme Court reading of the Scheduled Castes and Scheduled Tribes legislation, the history traced in the article on the SC ST Act 2018 amendment, which owns the comparison. The 2023 instance differs from that one in a way that repays attention. The displaced holding in Excel Crop Care concerned the construction of a statutory word and the proportionality of a monetary penalty. It decided no constitutional right, and it invalidated nothing. Parliament was not defying a constitutional limit; it was exercising the ordinary legislative power to choose a different policy for a definition the Court had filled by interpretation.

That is why the override, of the three documented in this series, is the least dramatic in form and arguably the most complete in effect. A legislature that disagrees with a construction can always amend the construed words, and the technique here was surgical: a single Explanation, defining the contested term, inserted into the construed section. The lesson the trail teaches is about where judicial decisions are vulnerable. A holding that rests on the meaning of a statutory term, however elevated its reasoning, lasts only until the legislature supplies the meaning itself; a holding that rests on a constitutional limitation does not. The live constitutional challenge to the penalty provision is best understood as an attempt to move the contest onto the second ground, by arguing that a penalty base of this breadth is not merely a definition but an arbitrariness and proportionality violation. Until a court accepts that move, the override stands as an unremarkable exercise of legislative supremacy in statutory matters.

The unfinished agenda: a digital competition law that does not exist

One recommendation of the reform era was deliberately left out of the amendment, and accuracy requires its status to be stated with care. Digital markets were addressed in parallel by a separate process. The Parliamentary Standing Committee on Finance reported in December 2022 on anti competitive practices by large technology companies and recommended an ex ante framework for digital markets. The Ministry of Corporate Affairs constituted the Committee on Digital Competition Law in February 2023, and that Committee submitted its report on 12 March 2024 with a draft Digital Competition Bill. The draft proposes designating systemically significant digital enterprises providing core digital services and imposing conduct obligations on them in advance, of the kind the European Union’s Digital Markets Act imposes on gatekeepers, rather than waiting for abuse to be proved after the event. The digital markets context in which that proposal sits is part of the technology law guide for India.

The draft Bill has not been introduced in Parliament. It is not law, it creates no obligations, and descriptions of it as an enacted digital competition act, which circulate in commentary, are wrong. Its relevance to this amendment trail is as a boundary marker. The 2023 amendment strengthened an effects based, ex post statute and added tools, thresholds and negotiated exits to it; the question whether India additionally needs an ex ante code for a designated few digital enterprises remains an open legislative question that the amendment neither answered nor prejudged.

Assessment: what the amendment most alters

For a board or a deal team asking where the amendment bites hardest, the answer depends on the seat. Transaction planners feel the deal value threshold and the material influence standard of control, because those provisions convert transactions that once closed without a filing into notified combinations with a standstill, while the hundred and fifty day ceiling caps the suspense they must price. Litigants feel the penalty base, because it revalues every pending defence and every settlement conversation, and the twenty five per cent deposit, because it changes the cost of testing the Commission’s arithmetic on appeal. Participants in distribution and platform arrangements feel settlement and commitment, because a negotiated correction is, for the first time, a real alternative to a contested dominance case. Cartel participants feel hub and spoke and leniency plus in combination: more of the arrangement’s members are within the prohibition, and each of them holds a stronger incentive to report the rest.

The amendment’s coherence is its most underreported quality. Its pieces interlock: the wider cartel net pairs with the deeper leniency incentive, the wider merger net pairs with the shorter clock, the larger penalty ceiling pairs with published guidelines and a negotiated exit for the cases in which a contest is wasteful. Whether the interlocking survives judicial examination of the penalty base, and whether the Commission’s practice under the Guidelines keeps faith with the reconciliation those Guidelines promise, are the two questions on which the amendment’s reputation will be settled. This article is a general account of the amendment for information; it is not legal advice on any transaction or proceeding.

The passage in Parliament, and what the amendment left out

The two Bill stage deserves a fuller record than the summary above, because several features of the enacted text are intelligible only against the drafting choices the passage exposed. The Competition (Amendment) Bill 2022 was introduced in the Lok Sabha in August 2022 and was referred for examination to a joint committee of Parliament, an unusual route for a technical economic Bill and a signal that the government expected contest. The committee process drew submissions from industry bodies, law firms, consumer organisations and the Commission itself, and the consultation record, including the slide decks circulated by stakeholder groups during that examination, can be reviewed in a presentation viewer for the consultation decks. The Bill that returned in 2023, and that Parliament enacted, differed from its predecessor in respects that practitioners had pressed for: the substantial business operations condition was tied expressly to the target of the transaction, the settlement and commitment mechanisms were confined with greater precision to the provisions they were meant to serve, and the penalty Explanation was framed in the global turnover language that the earlier debate had already identified as the Bill’s most contentious sentence.

Two arguments dominated the parliamentary and professional debate, and both survive in the assessment sections of this article because neither was resolved by the vote. The first was the penalty base. Members and commentators who opposed the global turnover definition argued that the Supreme Court’s reasoning in Excel Crop Care was not a drafting accident to be corrected but a considered statement about the limits of penal power in a regulatory statute, and that reversing it by definition invited the constitutional challenge that has since been filed. Supporters answered that the Court had itself decided a question of policy, the proper measure of deterrence, on which the legislature’s view is entitled to prevail, and that leaving the construction in place would have confined Indian penalties, in the cases of greatest public concern, to fractions of a per cent of the offender’s resources.

The second argument concerned the deal value threshold and the burden it casts. Transaction lawyers warned that a value test, applied to a target’s Indian footprint measured in users and merchandise value, would capture acquisitions with no plausible Indian competitive effect and would impose Indian filing timetables on global deals whose Indian element is incidental. The government’s answer, given in the debate and reflected in the final design, was threefold: the two thousand crore figure is set high; the substantial business operations tests are proportionate tests keyed to a tenth of the target’s global business; and the shortened decision period, with deemed approval at its end, caps the cost of a mistaken capture. The enacted text is the compromise those answers describe, and the Regulations’ ten per cent tests are where the compromise is administered.

Equally instructive is what the amendment did not enact. The Review Committee’s proposal for a governing board structure at the Commission, separating its adjudicatory and administrative leadership in a new way, was not carried into the Act; the Commission’s institutional design was left as the parent Act made it, with the Director General transfer as the principal governance change. The Committee’s reflections on a dedicated framework for digital markets were taken up, as the section above records, by a separate committee and a separate draft Bill rather than by this Act. And the amendment did not disturb the substantive prohibitions themselves: Sections 3 and 4 prohibit what they prohibited before, and the decided cases on agreement, dominance and appreciable adverse effect continue to govern the merits of every inquiry. A reader who approaches the amendment expecting new offences will not find them. What changed is who is caught, what must be notified, how cases can end, and what a contravention can cost.

The deal value threshold debated on its merits

Because the threshold is the amendment’s most operationally significant merger change, the arguments on each side deserve the full statement the stance of this series requires. The case for the threshold begins with the economics of acquisition in platform and technology markets. In those markets an incumbent can extinguish future competition most cheaply by buying the challenger before the challenger has revenue, and the price paid is the best available evidence of the value the incumbent places on removing the threat. Asset and turnover thresholds are blind to that evidence by construction: they measure what the target has accumulated, not what the acquirer fears. A regime that reviews only accumulated size will systematically miss the acquisitions most likely to matter, and will miss them in the sector where the cost of a missed review is hardest to reverse, because data, users and network effects, once combined, cannot be unscrambled by a later order. The German and Austrian transaction value thresholds, adopted after a prominent pharmaceutical and technology acquisition escaped review in Europe, rest on the identical reasoning, and the Review Committee’s recommendation placed India in that line.

The case against the threshold is not a defence of the gap; it is an argument about the instrument. A value test captures transactions with no competitive significance whatever, because price reflects many things besides expected market power: synergies in other countries, defensive patent purchases, acqui hire of engineering teams, and the simple fact that venture valuations are generous. The substantial business operations tests, keyed to users and merchandise value, can be satisfied by a target whose Indian business is a small free user base attached to a global product, and the parties must then suspend a worldwide closing for an Indian filing whose competitive question is, on any view, thin. The displacement of the small target exemption removes the one filter that kept genuinely minor Indian elements out of the system. And the compliance cost is not symmetric: it falls on every large transaction, to buy protection against the few that are dangerous.

The verdict this article takes is that the threshold was necessary and that its calibration, not its existence, is the legitimate field of argument. The two thousand crore line and the ten per cent proportions are administrative choices that can be revised by rule and regulation as filing data accumulates, and the Commission’s published filing experience in the first years of the regime is the evidence on which revision should turn. A threshold that catches some harmless deals is the known price of a threshold that catches the dangerous ones; a threshold set so high or tested so narrowly that it catches nothing would repeat, in a new form, the failure of the tests it supplements.

How the threshold tests work on real transactions

Three stylised transactions show the machinery at work and expose the points on which advice is actually given. In the first, a global software group acquires an Indian founded software as a service company for a consideration of two thousand six hundred crore rupees. The target’s Indian turnover is modest and its assets are laptops, leases and receivables; under the asset and turnover limbs no filing would ever have been made. For the deal value limb the value test is met on the headline price alone, and the substantial business operations test is then applied to the target: because the target provides digital services, the question is whether a tenth of its global business users or end users are in India, or a tenth of its merchandise value or turnover is Indian. A software company founded in India and selling worldwide will commonly satisfy the user limb without difficulty. The transaction is notifiable, the standstill applies, and the deal documents must be sequenced around an Indian approval that the parties, under the old law, would not have contemplated.

In the second, a foreign industrial group buys a foreign competitor for a global price far above the threshold, and the target has an Indian subsidiary with real factories. Here the deal value limb and the asset and turnover limbs may both be engaged, and the substantial business operations test for a non digital enterprise requires Indian merchandise value or turnover above five hundred crore rupees and a tenth of the global figure. The Indian filing is one of many worldwide, and the practical questions are the familiar ones of timetable coordination and of whether the Indian business raises any substantive issue, which in a foreign to foreign transaction with a small Indian overlap it ordinarily does not. The threshold adds a filing; it does not add a problem.

In the third, an acquirer takes a twenty two per cent stake in a listed Indian technology company, with a board seat, extensive information rights and vetoes over the annual budget, business plan and senior appointments. The stake is a minority, and no acquisition of a controlling shareholding has occurred. The question the amended definition of control forces is whether those rights, in combination, amount to an ability to exercise material influence over management, affairs or strategic commercial decisions. If they do, the transaction is an acquisition of control within Section 5, and if the value and operations tests are met it is notifiable notwithstanding the minority percentage. This is the class of case in which the material influence standard does its quiet work, and it is the class most often missed by a shareholding based intuition.

Merger procedure after the amendment: notice, standstill and the green channel

The amendment’s merger changes are completed by the procedural settlement in the Combinations Regulations 2024, and an account of the trail that stopped at thresholds would mislead a reader about what filing involves. A notifiable combination must be notified to the Commission, in the shorter Form I for the general run of cases or the detailed Form II where the parties’ combined shares cross the levels the Regulations prescribe, and the transaction cannot be consummated until the Commission approves it or the statutory period expires. The standstill is the regime’s teeth: consummation in breach, the conduct called gun jumping, exposes the parties to proceedings and to penalty under Section 43A, which permits a penalty extending to one per cent of the total turnover or the assets of the combination, whichever is higher. The treatment of transactions signed before 10 September 2024 and closed after it, recorded in the table in this article, was the transitional application of that discipline: notification required, penalty protection for steps already closed.

For transactions that raise no competition concern because the parties do not overlap and are not vertically related in a way that matters, the green channel offers deemed approval upon filing, on the parties’ own certification of the absence of overlaps. The channel predates the amendment in administrative form and was carried into the 2024 settlement of rules; its significance for this trail is that the system’s answer to a wider net is not merely a faster clock but a sorting mechanism, under which the plainly harmless majority of filings clear at once and the Commission’s one hundred and fifty days are spent on the minority that present a question. Modifications remain available where a combination raises concerns that a divestiture or a behavioural condition can cure, and the Commission’s power to approve subject to modification, and to appoint agencies to monitor compliance, was part of the framework the Regulations restated.

Two filing disciplines created by the deal value limb deserve emphasis because they are where errors will occur. The first is the valuation discipline: the transaction value must be assembled from all the documents, including ancillary arrangements within the two year window the Regulations prescribe, and certified on that basis. An understated value is not a mere irregularity; it determines jurisdiction, and a filing decision taken on the lead agreement alone is a decision taken on incomplete facts. The second is the operations discipline: the user, merchandise value and turnover proportions must be computed for the target on consistent global and Indian measures, at the relevant date, and retained in the deal file, because the Commission may test the computation if the filing decision is ever questioned. Both disciplines are exercises in record keeping, and the amendment, characteristically, has made record keeping a jurisdictional act.

Settlement and commitment in depth: price, revocation and compensation

The mechanisms repay closer examination, because their details decide whether a party should use them. A commitment, first, is not an admission. The applicant proposes terms (typically the cessation of the impugned practice, changes to contracts or platform rules, and reporting obligations) without the inquiry proceeding to a contested finding, and the Commission’s acceptance order records the closure of the proceedings on those terms. The Regulations require the application to be complete and candid: an applicant that suppresses material facts risks revocation, and Section 48C supplies the consequence, empowering the Commission to revoke a commitment order obtained by false representation or non implementation and to restore the inquiry, with penalty exposure revived. The monitoring machinery, which may run for the period the order prescribes and may involve reporting and compliance verification, means a commitment is a continuing regulatory relationship rather than a single payment, and its true cost is the cost of living under the terms.

A settlement, by contrast, is priced in money and in admission like consequences. The Settlement Regulations compute the settlement amount from the penalty framework that a contested order would have applied, so the applicant’s decision is an explicit comparison between a discounted, certain sum paid promptly and an uncertain, larger sum contested through the Tribunal and the courts over years, with the twenty five per cent deposit awaiting at the appellate door. Two further prices must be entered in the comparison. The compensation exposure under Section 53N, under which persons who suffered loss may apply for compensation on the foundation of the settlement order, converts a private bargain with the regulator into a platform for follow on claims. And the absence of any appeal from a settlement order means the applicant cannot reserve a fallback: acceptance is the end of the matter in every forum except compensation.

Why, then, would a rational party settle? The reasons are recorded in the structure of the regime. A contested dominance case in India consumes years, generates findings usable by private claimants and foreign regulators, and ends, if it ends badly, in a penalty computed after 2024 against a global ceiling. A settlement caps the sum, shortens the publicity cycle, allows the enterprise to design its forward conduct rather than have conduct imposed, and frees management attention. The Commission’s reasons mirror them: settlements and commitments return the regulator’s scarcest resource, hearing and investigation capacity, to the cartel and merger work that cannot be bargained. The exclusion of cartels from both mechanisms is the regime’s moral line, and its logic is deterrence arithmetic: a cartel’s expected penalty must remain high enough, and uncertain enough in the leniency race, that no participant can treat settlement as a priced cost of colluding.

The first years of the mechanisms will be read closely for signals: the discount the Commission in practice allows against the computed penalty, the kinds of commitment terms it accepts in platform cases, and whether it publishes enough reasoning in acceptance orders to let advisers price future applications. A mechanism without visible precedents is a mechanism used only by the desperate; the Regulations’ consultation and publication requirements suggest the Commission understands that its early orders are, in effect, the tariff schedule on which the market in negotiated closure will trade.

The penalty framework completed: turnover determination and individual liability

Two companion instruments of March 2024 complete the penalty story and are too often omitted from accounts of the amendment. The Determination of Turnover or Income Regulations 2024 prescribe how the figures on which everything depends are to be arrived at: turnover is drawn from the enterprise’s audited financial statements, with adjustments the Regulations specify, and for an enterprise that is part of a group the computation follows the statutory definition rather than the perimeter the enterprise might prefer. The point is jurisdictional in miniature. Once the base is defined as global turnover from all products and services, the contest moves from law to accounting: which entities’ revenue is inside the enterprise, which years supply the three year average, and how income is to be determined for individuals against whom penalty is proposed.

Individual liability is the second completion. Section 48 fastens penalty on persons in charge of and responsible for the conduct of a company’s business where a contravention is proved against the company, subject to the defences the section provides, and on officers with whose consent, connivance or neglect the contravention occurred. The Penalty Guidelines address the determination of penalty for individuals by reference to their income, and the Turnover Regulations supply the method for determining that income. In a global turnover regime the individual provisions matter more, not less: they are the part of the framework that reaches the executives who designed the conduct, and boards evaluating settlement or leniency are in practice evaluating the position of named individuals as much as the position of the balance sheet.

The practice that preceded the amendment should also be recorded, because the Guidelines displaced a discretionary era rather than a vacuum. Before 2024 the Commission selected percentages case by case, explaining itself by reference to gravity, duration, cooperation and the circumstances of the parties, within the relevant turnover frame Excel Crop Care supplied. Orders from that era show both the virtues and the vices of unstructured discretion: outcomes that tracked the facts closely, and outcomes whose distance from comparable cases no published method could explain. The Guidelines’ thirty per cent starting band and their enumerated adjustment factors are an attempt to keep the first quality while curing the second. Whether they succeed is an empirical question about the orders that apply them, and the appellate courts, which review penalty for proportionality as a matter of course, will grade the attempt case by case.

Four situations in which the amendment changes the advice

The trail is best closed, for the practitioner readers the brief names, by four situations stated concretely. A venture backed target is to be acquired for a price above two thousand crore rupees; its revenue is a tenth of the price. Under the parent Act the advice was that no Indian filing arose. After 10 September 2024 the advice is that the deal value limb must be tested, the target’s user and merchandise value proportions assembled, and the closing timetable built around a possible notification and standstill. The amendment has converted a non event into a gating item, and the conversion is the single most common surprise the new regime holds for foreign deal counsel.

A dominant platform faces an inquiry into self preferencing. Before the amendment its choices were to contest through investigation, hearing and appeal, or to change conduct informally without closure. After 6 March 2024 it holds a third option with a timetable: offer commitments within the window the Commitment Regulations prescribe and seek closure without a penalty or a contested finding, accepting monitoring in exchange. The advice turns on an assessment the old law never required at that stage: whether the conduct can be corrected by terms the Commission will accept, priced against the penalty exposure that the global turnover ceiling has meanwhile enlarged.

A participant in a price fixing arrangement among manufacturers learns that a competitor has begun cooperating with the Director General. Before the amendment its leniency decision concerned one cartel. After 20 February 2024 the same participant, if it sits in a second arrangement (a purchasing cartel, a bid rotation in another region), can price a leniency plus disclosure that buys up to thirty per cent of additional relief in the first case alongside protection in the second. The race structure of leniency is intensified: the value of being first has risen, because the first mover can sell two secrets.

An enterprise receives a penalty order and weighs an appeal. Before May 2023 the appeal suspended the penalty at no statutory cost. After the deposit provision, the appeal must be financed to the extent of twenty five per cent of the penalty before the Tribunal will entertain it, and where the penalty was computed in the global turnover era the deposit is a material cash decision taken within the appeal period. Boards that once authorised appeals as a reflex must authorise a payment, and the quality of the advice they receive on prospects has acquired a cash value it previously lacked.

The smaller enforcement changes, and why they are not small

A trail that recorded only the headline changes would omit a set of provisions that practitioners encounter weekly. The May 2023 wave widened the Act’s working vocabulary. The definition of enterprise was adjusted so that the services dimension of the prohibitions is express throughout Sections 3 and 4. The definition of relevant geographic and product markets, on which every case is built, was aligned with the Commission’s practice of testing substitution from the supply side as well as the demand side, a change that matters in platform cases where suppliers can repurpose capacity or code between adjacent services with a speed that demand side analysis alone understates. The inserted definition of party regularised the position of the informant, the consumer and the trade association in proceedings, replacing a patchwork of procedural orders with a statutory footing.

The hearing provisions were also rebuilt. Parties may call expert witnesses to depose before the Commission, a facility that matters in cases that turn on econometric evidence and that formalises what had been an indulgence. The Director General’s powers of investigation, summons, document production and examination were codified within the Act on a self contained basis, ending the borrowing of company law machinery that had generated threshold objections in early dawn raid litigation. False statements and suppression of material information in proceedings were made more expensive: the amendment raised the penalty ceiling for such conduct, which commentary records at up to five crore rupees, reflecting a judgment that obstruction had been priced too cheaply relative to the stakes of the inquiries it delayed.

Compounding of offences completes the procedural picture. The amendment inserted a mechanism under which offences under the Act that are not punishable with imprisonment alone, or with imprisonment and fine, may be compounded by the Tribunal or the court before which proceedings are pending. The provision belongs to the same policy family as settlement and commitment: a statute administered for two decades through prosecution and penalty acquired, in a single amending Act, a graded set of off ramps, calibrated to the gravity of the matter. At the regulatory end, commitments correct conduct; at the adjudicatory end, settlements price it; at the criminal margin, compounding closes offences that do not merit a trial. The coherence is deliberate, and it is the strongest evidence that the amendment was designed as a system rather than assembled as a list.

One further discipline deserves record: the requirement of prior public consultation before the Commission makes regulations, and the power conferred on the Commission to issue guidelines on the provisions of the Act, including on the quantum of penalty. The Penalty Guidelines of March 2024 were the first major exercise of the guideline power, and their existence changes the character of penalty argument. Submissions that once appealed to the Commission’s sense of proportion in the abstract are, after the Guidelines, submissions about the application of a published method, and the appellate courts will hold the Commission to its method as administrative law holds any authority to its announced policy, departures requiring reasons.

Hub and spoke in practice: proof, platforms and associations

The hub and spoke amendment will be tested in proof before it is tested in principle, and the proof problems deserve a section of their own. A traditional cartel case is built from the communications of the competitors themselves: the meeting, the message, the parallel price announcement that plus factors connect to an understanding. A hub and spoke case is built differently. The spokes may never have communicated at all. The evidence runs through the hub: the association circular that published members’ intended prices, the platform algorithm that aligned sellers’ prices after each received the same signal, the distributor who carried one manufacturer’s message about rivals’ intended increases and returned with their acceptance. The amendment’s language, participates or intends to participate in the furtherance of the agreement, is written for that evidentiary shape: it asks what the hub did to advance the spokes’ arrangement, and it permits intention to be inferred from preparation, attendance, transmission and discipline.

Two questions will occupy the early cases. The first is the rim question: must the prosecution prove that the spokes knew of each other and understood themselves to be parties to a common scheme, or is it enough that each spoke dealt with the hub in the knowledge that the hub performed the same service for its competitors? Comparative doctrine divides on the point, and the Indian text, which fastens on the hub’s participation in the furtherance of the agreement between the spokes, will require the Commission to construct the agreement first and the facilitation second; a hub cannot further an agreement that is not proved to exist. The second question is the boundary of legitimate intermediation. Platforms, associations and agents handle commercially sensitive information in the ordinary course: a marketplace’s pricing tools, an association’s statistical returns, a common sales agent’s reports. The amendment does not criminalise the handling; it condemns participation in the furtherance of a horizontal restraint. The line between a pricing tool and a pricing conspiracy will be drawn, case by case, on the design choices of the tool and the knowledge of its operator, and compliance advice in this area has accordingly moved from contract review to product review.

For trade associations the change is the most immediate. Associations convene competitors, circulate information among them and publish the industry’s collective positions; they are, structurally, permanent hubs. Their exposure after May 2023 is not a reason to dissolve them (their standard setting, statistical and representational functions are legitimate and often pro competitive) but it is a reason to rebuild their compliance architecture: agendas minuted and confined to legitimate subjects, no circulation of members’ future prices or output intentions, statistical programmes aggregated and aged, and counsel present where the agenda approaches the market. The amendment, in this respect, regulates an institution by pricing its risks rather than by prescribing its conduct, and associations that adjust will find the statute leaves their proper work untouched.

Proportionality after the amendment: the question the courts still hold

The constitutional litigation over the penalty base will be decided on doctrine that long predates competition law, and the trail is incomplete without a statement of it. Indian courts reviewing penalties ask, in substance, three questions. Is the penalty authorised by a valid law and imposed by the procedure that law prescribes? Is the discretion to fix the amount guided, or at least structured, so that like cases are treated alike? And is the amount, in the individual case, proportionate to the contravention, a requirement the courts have enforced against regulators by reading down unguided powers and, where reading down is impossible, by moderation of the individual order? Excel Crop Care was an exercise of the third technique and the second: the Court structured the unguided word turnover by reference to the contravention, and in doing so announced that a penalty measured on unrelated revenue would offend the proportionality the statute, properly read, required.

The amendment answers the second question and contests the third. It supplies the definition the Court had to construct, and it accompanies the definition with Guidelines that structure the discretion more elaborately than the construction they replaced. The constitutional attack must therefore be aimed at the definition itself: the proposition that a ceiling measured on worldwide revenue from all products is so unrelated to the wrong that no structuring of the path toward it can save it. That is a harder proposition than the one Excel Crop Care decided, because legislatures are conceded a wide choice in fixing deterrent ceilings, and because the Guidelines’ method ensures that the ceiling is a cap on a computation that begins with the affected product rather than the destination of every computation. The counter argument, which the pending challenge presses, is that breadth at the ceiling is not cured by discipline at the starting point where the decision maker may depart upward for deterrence and where the cap is the only hard limit the statute sets.

A distinct question, entangled with the first in the pending proceedings, is temporal application. Penalties are imposed in inquiries that may concern conduct spanning the amendment’s commencement, and the Turnover Regulations and Guidelines were applied by the Commission in a decided case to a contravention period preceding them, a use the challenger characterises as retrospective imposition of an enhanced penalty. The general principle that a penalty provision is applied as it stands when the order is made, and the counter principle that no person should face a heavier penalty than the law allowed when the act was done, will both be argued; the answer will govern a generation of pending cases and is, with the validity question itself, part of the unfinished business this trail records without pretending to settle.

A combination case on the new clock: the timeline worked through

To make the shortened merger timetable concrete, take a notifiable acquisition notified in Form I shortly after the September 2024 commencement of the new regime. The parties file and the standstill begins: the transaction cannot close. The Commission has thirty calendar days to form a prima facie opinion whether the combination causes or is likely to cause an appreciable adverse effect on competition. For the large majority of filings, which present no overlap of consequence, the opinion is that no such effect arises, and approval follows within that first phase, or the filing clears at once through the green channel where the parties certify the absence of overlaps and claim deemed approval on filing itself.

If a prima facie concern is recorded, the inquiry deepens: the parties are asked to show cause, information is called for, third parties and the public may be invited to comment where the statute requires publication, and the Commission may propose the framework within which modifications, a divestiture of an overlapping business or a behavioural condition, could resolve the concern. The statutory outer limit for the whole exercise is one hundred and fifty calendar days from notification, a limit computed with the exclusions the Act allows for time taken by the parties in furnishing information, and at its expiry without an order the combination stands deemed approved. Against the earlier two hundred and ten day horizon the compression is material to deal practice: financing commitments, long stop dates and interim operating covenants are all drafted against the outer date, and sixty days removed from that date is sixty days of deal risk retired. The quid pro quo structure of the 2024 package is visible in the arithmetic: the State acquired jurisdiction over transactions it could not previously see, and paid for the acquisition in the currency of its own decision time.

In the filing room: forms, shares and the aggregation of steps

The Regulations translate the threshold questions into filing mechanics, and three of them decide real cases. The first is the choice of form. The ordinary filing is Form I, a short form designed for transactions without material overlaps. Where the parties’ combined market share in a relevant market exceeds the levels the Regulations prescribe, fifteen per cent where the parties are in the same market and twenty five per cent where they are in different or vertically related markets, the detailed Form II is required, with the market definition, share and effects material that a substantive review consumes. The deal value filer must therefore run two analyses in sequence: the jurisdictional analysis that decides whether to file at all, and the overlap analysis that decides how.

The second mechanic is aggregation. Transactions structured in steps, a minority purchase followed by a call option, an asset purchase alongside a business transfer, are not tested step by step in isolation where they form one ultimate intended transaction. The Regulations’ treatment of interconnected steps, and the valuation rule that counts the consideration for the whole arrangement including options at full exercise, are directed at the obvious avoidance device of slicing a large acquisition into sub threshold parcels. Advisers testing a staged investment must test the completed picture, not the first slice, and the two year window within which ancillary consideration counts is part of the same anti fragmentation design.

The third mechanic is the treatment of exemptions. Alongside the small target rules, the exemption framework restated in 2024 protects defined categories of ordinary course transactions, certain acquisitions by banks, public financial institutions, foreign institutional investors and venture capital undertakings under intimation obligations, and intra group transactions that do not change control in substance. The interaction with the deal value limb is the trap this article has already flagged: exemption under the size based categories does not answer the value based question, and each exemption must be checked against the limb actually engaged. The filing room error of the new regime will not be a missed threshold; it will be an exemption claimed against the wrong test.

The amendment and the pending docket: transition questions

Every staged commencement creates a class of matters that straddle the operative dates, and the amendment’s classes deserve separate statement because the dates differ by subject. Conduct cases are governed by the provision in force for the step in question: the hub and spoke extension, commenced in May 2023, supplies the liability frame for facilitation conduct prosecuted under it; the limitation period disciplines the filing of information; the deposit condition attends appeals entertained after its commencement. In penalty matters the contest recorded in the proportionality section of this article (whether the global turnover definition and the 2024 instruments govern an inquiry into earlier conduct when the order is passed later) is the live transitional dispute, and parties on both sides of pending cases have taken the positions the doctrine suggests: the Commission applying the amended framework as the law of quantification in force at decision, respondents insisting that the heavier ceiling is a penalty enhancement that cannot reach backward.

Combination matters carry the cleanest transition rule and the sharpest edge. The September 2024 package was applied by reference to closing, not signing: a transaction documented before commencement but unclosed at it required notification if the new tests were met, with gun jumping protection for steps already consummated. The rule is intelligible (the mischief merger control addresses is the combination of businesses, which occurs at closing) and it was announced in the Regulations and the Commission’s accompanying clarifications, but it converted signed deals into filing obligations mid completion, and the deal documents of 2024 that lacked a regulatory condition drafted for the new limb had to be renegotiated around it. The lesson generalises beyond this amendment: in a staged commencement, the operative concept (signing, closing, filing, order) is itself a provision of the law, and a trail that reports only the calendar dates without the operative concepts has reported half the rule.

For the appellate docket the deposit provision performs a similar sorting. Appeals against penalty orders are entertained on deposit of a quarter of the penalty, and the sums involved in the global turnover era make the deposit the first real test of an appellant’s conviction. Commentators who predicted that the provision would reduce the appellate caseload treat the early pattern of deposits and withdrawals as the evidence to watch; those who criticised it as a burden on the right of appeal answer that a reduction purchased by pricing appellants out is not an efficiency but an exclusion. Both propositions can be true of different cases, and the Tribunal’s practice on deposit related applications will determine which description fits the run of them.

How this amendment was made: the committee as draftsman

A closing observation on method is warranted because the amendment is an unusually clear specimen of a legislative technique. Its substantive programme was written, in substance, by an expert committee in 2019; translated into a Bill in 2022; revised through a parliamentary committee in 2023; commenced in tranches chosen by the executive across 2023 and 2024 as the subordinate legislation each tranche required was prepared; and completed by regulations and guidelines made by the regulator the statute governs. At every stage the content narrowed and hardened: the committee’s governing board proposal fell away, the target side clarification was inserted, the penalty definition was put in the contested form and defended, and the thresholds the committee had left as concepts acquired figures, proportions and floors in the Regulations.

The technique has costs that the trail makes visible. A statute whose operative content depends on four commencement dates and three sets of regulations cannot be read from the statute book alone, and the period between assent and the final tranche is a period in which the law on the page and the law in force diverge (a divergence this article exists to map). It also has a virtue the same trail displays: each tranche commenced when its machinery existed, so the deal value threshold arrived with its tests, the settlement mechanism with its Regulations, and the penalty definition with its Guidelines, rather than as bare powers awaiting content. Whether the balance between those costs and that virtue is right is a question about Indian legislative practice generally. For this amendment, the mapping discipline it imposes on advisers, to ask of every provision not only what it says but from when it speaks, is the durable professional lesson, and it is the reason the article has been organised as a trail rather than as a commentary on a text.

The economics beneath the thresholds

The choice of measures in the merger package (price for the trigger, users and merchandise value for the territorial test, material influence for control) reflects a single view of where competitive significance resides in the markets the reform addresses, and the view is worth stating because it predicts how the tests will be administered. In conventional industries significance is stored in plant, inventory and revenue, and the older thresholds measured the store. In digital and platform markets significance is stored in attention and transaction flow: a user base that returns daily, a stream of orders routed through one interface, a dataset that improves the product with every use. Those stores of significance are real before they are profitable, and they are precisely what an acquirer prices when it pays two thousand crore rupees for a business with negligible turnover. A threshold system that measured only revenue would be measuring the shadow of the thing in the markets where the thing itself has moved.

Merchandise value deserves particular notice as a measure, because it is the least intuitive of the three substantial business operations limbs. For a marketplace or platform business, revenue may be only the commission on transactions whose full value passes through the platform; turnover therefore understates the platform’s grip on the flow of commerce by the whole value of the goods and services traded. Gross merchandise value measures the flow itself. Its inclusion, at a ten per cent proportion, in both the digital and the general limbs of the test is an acknowledgment that the regulated event is control over a stream of transactions, and that a stream can be competitively decisive at a scale its commission revenue does not suggest. The same logic explains the user limb: for a service priced at zero, the user count is the only quantitative trace of the position the service occupies, and a test that ignored it would exempt the strongest positions in the market from the territorial inquiry altogether.

Control as material influence completes the economic picture from the governance side. Market power in the transactions the amendment targets is frequently exercised without majority ownership: through board representation, through vetoes over budgets and business plans, through information rights that make the investor privy to the target’s strategic choices, and through commercial agreements that align the target’s conduct with the investor’s wider interests. A control test pitched at majority voting power would invite the structuring of influence in minority form. Material influence, the lowest recognised standard, prices the substance: the ability to affect management, affairs or strategic commercial decisions. Read together, the three measures say that the amendment regulates expected significance rather than recorded size, influence rather than title, and flow rather than stock. That is a coherent theory of merger control for the markets in question, and the filing room disputes of the coming years will be disputes about its application to structures designed, innocently or otherwise, to sit between its categories.

Leniency in depth: priority, withdrawal and the race the amendment intensified

The leniency programme’s mechanics determine whether leniency plus is a headline or an instrument, and they repay a closer account than the summary above. The programme is a race with graded prizes. The first participant in a cartel to make a full, true and vital disclosure, one that enables the Commission to establish the cartel or adds decisive value to an investigation already begun, may receive a reduction extending to the whole of the penalty. Later applicants receive reductions on lower ceilings, graded by the order of their arrival and the value their evidence adds to what the Commission already holds. Priority is therefore an asset with a wasting value: every day of deliberation is a day in which a co conspirator may take the first place and demote the deliberator to a lesser ceiling. The 2024 Regulations preserve that architecture and add two features that change the deliberation. An applicant must be heard before its application is rejected, which converts the threshold decision from an administrative gamble into a contestable one. And an applicant may withdraw its application, a right whose absence under the earlier regime meant that the first approach to the Commission was irrevocable, a design that deterred precisely the tentative approaches a detection programme should encourage.

Leniency plus operates inside that architecture as a multiplier on the second secret. Its conditions are cumulative and each is a potential point of failure. The applicant must already be a lesser penalty applicant in a first cartel. The second disclosure must concern a different cartel, not a wider account of the first. It must be full, true and vital in the programme’s established sense. And it must enable the Commission to form a prima facie opinion on the second cartel, so a disclosure of rumour or of a cartel the Commission already knows in substance earns nothing. The reward, an additional reduction of up to thirty per cent in the first case, is fixed with reference to the likelihood that the second cartel would have been detected without the disclosure, which prices the information rather than the confession: a secret that would have surfaced anyway buys little, and a secret that would have stayed buried buys the maximum.

The strategic consequences distribute across the whole cartel. Once one participant holds two secrets, every other participant’s calculus changes, because the first participant’s optimal strategy may involve disclosures whose timing and content the others cannot observe. Defence advisers report that the practical effect of leniency plus is felt less in the cases it produces than in the compliance conversations it starts: an enterprise that discovers one cartel in an internal audit must, after February 2024, audit for the second with a diligence the old law did not reward, because the value of its disclosure in the known case depends in part on what else it can truthfully bring. Detection programmes inside companies have thereby acquired a statutory business case, and the amendment’s enforcement half (wider liability for facilitators, deeper rewards for informants, no negotiated exit for cartels) is best understood as a single wager that cartels are beaten by information purchased from inside them rather than by evidence assembled from outside.

Dominance practice after the amendment

Section 4, the prohibition of abuse of dominant position, was substantively the least altered of the major provisions and procedurally among the most affected, and the combination explains much of the amendment’s practical centre of gravity. On substance, the May 2023 wave made the services dimension of the section express and widened a defence: the justification of meeting competition, previously available in terms against the charge of imposing discriminatory conditions, was extended so that it may answer the imposition of unfair conditions as well. The extension is a small sentence with a large litigation shadow, because the standard defence of a dominant firm to a pricing or conditions complaint is that its terms merely matched what rivals offered, and the class of complaints to which that answer is statutorily available has grown.

The procedural transformation is the settlement and commitment machinery, which exists only for Section 3(4) and Section 4 matters and which therefore bears on dominance cases with full weight. A dominance inquiry is characteristically long, expert heavy and reputationally expensive, and its subject matter (a contracting practice, a platform rule, a pricing structure) is characteristically capable of prospective correction in a way a completed cartel is not. Those features made dominance the natural home of negotiated closure, and the early commitment applications in the regime will predictably cluster there. The complainant’s position deserves note in that calculus: a commitment closes the inquiry without the findings a complainant might have used in a compensation application, which gives informants in dominance matters a reason to press their objections at the consultation stage the Regulations provide, and gives the Commission a reason to hear them seriously. The mechanism’s legitimacy in its first cases will be built, or spent, on how visibly that consultation is weighed.

Dominance is also where the penalty base change bites hardest in expectation. The paradigmatic global turnover case is not a cartel of domestic manufacturers, whose worldwide and relevant figures may be close; it is a multinational platform whose Indian revenue in the service under scrutiny is a small fraction of its global revenue across all services. For such an enterprise the amendment multiplies the ceiling by an order of magnitude while simultaneously offering, in commitment, an exit that avoids the ceiling altogether if taken early and in settlement if taken after the investigation report. The architecture is a ratchet: contest and risk the global ceiling, or correct early and pay in conduct rather than in cash. Advisers who describe the amendment as merely raising penalties have hold of the lesser half of the design.

Open questions the trail leaves behind

Four questions remain genuinely open at the close of this trail, and an accurate article should leave them open rather than decorate them with predictions. The first is constitutional: whether the global turnover ceiling survives the pending challenge, and if it survives, whether the courts will surround it with proportionality conditions that reproduce in doctrine much of what Excel Crop Care achieved by construction. The second is administrative: whether the Commission’s penalty practice under the Guidelines settles at the relevant turnover starting point with reasoned departures, or migrates toward the ceiling in the large digital cases for which the ceiling was built. The answer will be found in orders, not in statements, and the first generation of orders under the Guidelines is the text to watch.

The third question is transactional: whether the deal value threshold, in operation, catches the acquisitions it was designed for at a filing cost the system can defend, or whether filing data shows a harvest of competitively insignificant transactions large enough to force recalibration of the figure or the proportions. The Regulations are amendable without Parliament, and recalibration, if it comes, will be the regime working as designed rather than failing. The fourth is legislative: whether the ex ante digital competition proposal returns to Parliament, and in what form, after the consultation that followed the Committee on Digital Competition Law’s report of March 2024. The amendment strengthened a statute that acts after the event; the draft Bill proposes obligations that bind before it. Indian competition law will be organised around the choice between those philosophies, or around a settlement between them, for the next decade, and the 2023 Act, for all its breadth, deliberately did not make the choice.

What can be said without prediction is that the amendment has already changed the questions practitioners ask. The merger question is no longer only how large the parties are but what the transaction is worth and whose users the target holds. The defence question is no longer only whether the conduct contravenes but at which stage a negotiated end is cheapest. The cartel question is no longer only whether a participant should disclose but what else it knows. And the penalty question is no longer only what the affected product earned but what the enterprise is. A statute that changes the questions in four directions at once has earned the description this article gave it at the outset: not a rewrite of the prohibitions, but a rebuilding of everything around them.

Capacity: the condition the amendment did not legislate

Every provision in this trail assumes an institution able to operate it, and the honest close to an account of the amendment is a note on that assumption. The Commission that received the deal value threshold, the settlement and commitment jurisdiction, the guideline power and the enlarged penalty ceiling is the same Commission whose staffing a parliamentary committee examined in the digital markets context, recording that 113 of 195 sanctioned posts stood filled at the end of March 2024, with a digital markets capacity then being built inside the institution. The figures are stated here for the structural point they support and for no other: the amendment enlarged the regulator’s jurisdiction on every axis at once, jurisdiction over more transactions, over facilitators, over negotiated closures, over larger penalties, while the constraint on its output remained the number and specialisation of the people who staff its benches, its economics work and the office of the Director General.

The amendment does contain two capacity provisions of a kind, and they deserve recognition as such. The transfer of the Director General’s appointment to the Commission aligns the investigative office with the institution that consumes its work, ending a structural separation that had complicated accountability for investigation timetables. The consultation and guideline disciplines, which require the Commission to expose its draft regulations and to publish the method of its penalty discretion, economise on a different resource, legitimacy: decisions taken under visible methods are cheaper to defend on appeal than decisions taken under unexplained ones, and an institution short of hearing time has reason to value methods that narrow the issues an appeal can reopen.

What the amendment could not supply is the economists, forensic specialists and digital market analysts that the new jurisdiction presupposes, and the open questions catalogued above will be answered at the speed that capacity permits. The deal value threshold’s first filing cycles, the commitment mechanism’s first acceptance orders and the Guidelines’ first reasoned departures from relevant turnover are all, in part, examinations of the institution as much as they are examinations of the law. A reader of this series, which has tracked statute after statute whose force depended on the body charged with it, will recognise the pattern: Parliament has written an ambitious amendment, and the amendment’s meaning will be settled by the regulator’s practice under it, reviewed by the courts, in the years the trail format is designed to make legible.

Reading the amendment as a whole

Three ratios summarise what the amendment did, and they are a serviceable test of any summary of it encountered elsewhere. The first is a ratio of jurisdiction: the set of transactions, persons and cases inside the statute grew (more combinations by value, more cartel participants by facilitation, more closures by negotiation) while the set of prohibitions did not grow at all. An account that describes new offences misstates the Act; an account that misses the jurisdictional growth understates it. The second is a ratio of time: commencement was spread across sixteen months and four operative waves, so that the Act’s meaning at any moment in 2023 or 2024 depended on the calendar in a way the parent Act’s simpler history never required. An account that dates the whole amendment to April 2023 is wrong in the particular way this article set out to correct. The third is a ratio of discretion: at the same time that the statute widened the Commission’s powers, it surrounded their exercise with published method (the Penalty Guidelines), prior consultation (the regulation making discipline) and priced exits (settlement, commitment, compounding, leniency), each of which converts raw power into a procedure a court can review and an adviser can price.

Held together, the three ratios describe a maturing regulatory statute rather than a new one. The prohibitions of 2002 were the work of a legislature creating a regime; the amendments of 2023 are the work of a legislature that has watched the regime operate for two decades and has legislated, almost exclusively, about its reach, its endings and its sanctions. That is why the trail, and not the text alone, is the right unit of account for this Act: what Parliament changed can only be seen by watching the changes arrive, in their order, with their machinery, against the background of the cases and the committee reports that provoked them.

A final word belongs to the enterprises that must organise themselves under the amended Act before any case begins. The compliance consequences of the trail are front loaded: transaction protocols must test value and operations alongside assets and turnover; contract and platform teams must know that their arrangements sit inside the only two provisions for which negotiated closure exists, and must keep the records that a commitment application would need; cartel risk audits must assume that facilitators are inside the prohibition and that a co participant’s leniency plus disclosure can convert a dormant second arrangement into a live case; and finance teams must model penalty exposure against a global ceiling rather than against the revenue of the Indian product line, because the board that learns of the new base from a penalty order has learned of it a decade too late. None of that requires a contravention to have occurred. It requires only that the amendment be read as what it is: a change in the price of conduct, the reach of review and the value of information, effective in stages that this article has dated, and indifferent to whether the enterprise has noticed.

Frequently Asked Questions

Q: Which provisions did the Competition Amendment Act 2023 rewrite?

The amendment worked across the parent Act rather than in one place. It inserted the deal value threshold into Section 5 and redefined control there, extended Section 3(3) to facilitators, added a limitation period to the information procedure, redefined turnover for Section 27 by reference to global turnover, inserted Sections 48A and 48B on settlement and commitment, amended Section 46 to add leniency plus, transferred the appointment of the Director General under Section 16 to the Commission, required a deposit for penalty appeals, and reduced the outer merger review period from two hundred and ten days to one hundred and fifty.

Q: How does the deal value threshold work?

A transaction is a notifiable combination where its value exceeds two thousand crore rupees and the enterprise being acquired, taken control of, merged or amalgamated has substantial business operations in India. The threshold sits alongside the existing asset and turnover thresholds in Section 5; it does not displace them, so a transaction must be tested against every limb and notified if any one is crossed. Its purpose is to catch acquisitions of targets whose price is high although their assets and revenue are small, the pattern common in digital and technology deals, which previously escaped merger review entirely.

Q: What counts as substantial business operations in India?

The Combinations Regulations 2024 prescribe ten per cent tests applied to the target. For digital services, any one limb suffices: ten per cent or more of global business users or end users in India, or Indian gross merchandise value of ten per cent or more of the global figure for the preceding twelve months, or Indian turnover of ten per cent or more of global turnover in the preceding financial year. Outside the digital sector the merchandise value and turnover limbs also require the Indian figure to exceed five hundred crore rupees. The tests are applied at the relevant date, broadly the board approval or the execution of the transaction documents.

Q: How did the penalty base change in 2023?

Before the amendment, Section 27(b) allowed a penalty of up to ten per cent of average turnover, and the Supreme Court in Excel Crop Care read turnover as relevant turnover, the revenue of the products or services involved in the contravention. The amendment inserted an Explanation defining turnover as global turnover derived from all products and services. The statutory ceiling is therefore measured on worldwide revenue from everything the enterprise sells. The change took effect on 6 March 2024, together with the Turnover Regulations and the Monetary Penalty Guidelines, which structure how the figure within the ceiling is selected.

Q: What are settlement and commitment mechanisms?

They are negotiated endings to an inquiry, inserted as Sections 48A and 48B and operative from 6 March 2024. A commitment is offered early, after the Commission directs an investigation and before the investigation report reaches it: the party proposes corrective terms, and if the Commission accepts them the inquiry closes without a penalty. A settlement is sought later, after the investigation report finds a contravention and before the final order: the applicant pays a settlement amount computed under the Settlement Regulations and the matter closes. Both are confined to vertical agreement and dominance cases; cartels are excluded.

Q: How does a hub and spoke cartel operate?

Competitors, the spokes, coordinate without dealing with each other directly, using a common third party, the hub, to transmit the coordinating signal. A supplier, distributor, platform or trade association passes pricing intentions, output plans or bid details from one spoke to the others, and disciplines any spoke that deviates. The horizontal restraint is achieved through vertical channels, which is why the structure once created a pleading gap: the hub is not in the same trade as the spokes. The amendment closes the gap by covering a person who participates, or intends to participate, in the furtherance of the arrangement.

Q: How did merger review timelines change?

The outer period for the Commission to decide a notified combination fell from two hundred and ten days to one hundred and fifty calendar days, after which the combination stands deemed approved. The first phase also shortened: the period for the Commission to form its prima facie opinion moved from thirty working days to thirty calendar days. The changes commenced on 10 September 2024 with the rest of the merger package. The policy exchange is visible in the design: the notification net became considerably wider through the deal value threshold, and in return the period of suspense for a notified deal became shorter and more predictable.

Q: What is leniency plus?

Leniency plus is an addition to the lesser penalty programme in Section 46, effective 20 February 2024 under the Lesser Penalty Regulations 2024. An applicant that has disclosed one cartel and then makes a full, true and vital disclosure of a second, previously unknown cartel, enabling the Commission to form a prima facie opinion about it, can receive the ordinary lesser penalty reduction in the new case, which may run up to one hundred per cent, and in addition a further reduction of up to thirty per cent of the penalty in the first cartel. It pays an informant for a second secret with relief in the case already running.

Q: From which dates did the different parts of the Competition Amendment Act 2023 take effect?

In four waves. The conduct and procedure provisions, including hub and spoke coverage, the three year limitation period and the twenty five per cent deposit for appeals, commenced on 18 May 2023. The transfer of the Director General’s appointment to the Commission followed by notification dated 18 July 2023. Leniency plus commenced on 20 February 2024. The settlement, commitment and penalty provisions, including the global turnover base and the Penalty Guidelines, commenced on 6 March 2024. The merger package, the deal value threshold, the material influence definition of control and the shortened timelines, commenced on 10 September 2024. Assent, on 11 April 2023, commenced nothing by itself.

Q: Does the deal value threshold replace the asset and turnover thresholds for combinations?

No. The deal value limb in Section 5(d) operates in parallel with the asset and turnover limbs that the parent Act always contained. A transaction must be tested against each limb independently, and it is notifiable if it crosses any one of them. The practical effect is additive: deals that were notifiable before remain notifiable, and a class of deals that failed the size tests, high priced acquisitions of asset light and low revenue targets with substantial business operations in India, became notifiable in addition. Advisers who test only the older thresholds will miss filings that the new limb requires.

Q: Which payments count toward the value of a transaction under the deal value threshold?

The Combinations Regulations 2024 count every valuable consideration, whether direct or indirect, immediate or deferred, and in cash or otherwise. That includes consideration agreed separately for covenants and restrictions imposed on the seller, the value of interconnected steps of the same transaction, and amounts payable during two years from the effective date for arrangements forming part of the transaction or incidental to it, such as technology assistance, licensing of intellectual property, usage rights, supply of materials or finished goods, and branding and marketing. Call options are valued assuming full exercise, and outcome dependent amounts are taken at best estimate. The lead purchase price alone understates the test figure.

Q: Does the small target exemption protect a transaction that crosses the deal value threshold?

No. The de minimis or small target exemption, which protects acquisitions of targets below prescribed asset and turnover floors, does not apply where the deal value threshold is crossed. That disapplication is the point of the reform: the exemption was the route by which acquisitions of small but highly priced targets, frequently in digital markets, left the merger regime without scrutiny. A target may therefore be exempt under the asset and turnover limbs and still require notification because the price paid for it exceeds two thousand crore rupees and it has substantial business operations in India. The exemption continues to operate for transactions tested only under the older limbs.

Q: When in an inquiry must a commitment be offered, and when may a settlement be sought?

The two mechanisms occupy different windows in the same inquiry. A commitment application is made after the Commission has passed its prima facie order directing the Director General to investigate an alleged contravention of Section 3(4) or Section 4, and before the Director General’s investigation report reaches the Commission; it offers corrective terms in place of a contest. A settlement application is made after the applicant receives the investigation report recording a contravention, and before the Commission passes its final order in the inquiry; it accepts the framework of the case and pays a settlement amount under the Settlement Regulations 2024.

Q: Can a settlement or commitment order be appealed against?

No. An order of the Commission accepting a settlement under Section 48A or a commitment under Section 48B is not appealable, and that finality is part of the bargain the applicant strikes: speed and certainty are purchased with appellate rights. Two consequences follow for applicants. The assessment of the offer must be completed before the application is filed, because there is no appellate correction afterwards. And settlement carries an exposure that commitment does not: a person claiming to have suffered loss from the conduct may file a compensation application founded on the settlement, so the price of closure includes the compensation claims the settlement makes easier to bring.

Q: What penalty can a cartel face under the amended Section 27?

For an agreement covered by Section 3, the Commission may impose a penalty of up to ten per cent of the average turnover for the three preceding financial years, and for a cartel the first proviso to Section 27(b) permits the higher of three times the profit or ten per cent of the turnover for each year the agreement continues. Since the amendment, turnover in the section means global turnover derived from all products and services, so the ceiling against which the percentage is applied is the worldwide figure. The Monetary Penalty Guidelines 2024 then structure the selection of the amount, starting from relevant turnover and adjusting for gravity and deterrence within the statutory cap.

Q: What does the three year limitation period for filing information change?

Before the amendment the Act fixed no period within which information about an anti competitive agreement or an abuse of dominance had to be filed, and inquiries could be opened into arrangements of considerable age. The amendment requires information to be filed within three years from the date on which the cause of action arose. The Commission may condone a delay where sufficient cause is shown, so the bar is a disciplined threshold rather than an absolute one. In practice the change rewards prompt complaint by competitors and consumers, gives respondents a threshold objection to stale cases, and protects inquiries from the evidential decay that old documents and scattered witnesses produce.

Q: Why was the power to appoint the Director General moved to the Commission?

Because the earlier alignment was anomalous. The Director General investigates only when the Commission directs an investigation, and reports to the Commission, yet was appointed by and accountable to the Central Government. The Competition Law Review Committee, reporting in 2019, observed that such a separation between the investigative arm and the regulator was not the pattern in several international competition authorities or in other Indian regulators such as the securities and insurance regulators. The amendment therefore vested the appointment in the Commission from July 2023, while retaining the prior approval of the Central Government and a search cum selection process, so the government kept a check without keeping the appointment.

Q: What did the Competition Law Review Committee recommend in 2019?

The Committee, constituted by the Ministry of Corporate Affairs in 2018 under the chairmanship of Injeti Srinivas and reporting in July 2019, supplied most of the amendment’s architecture. It recommended a deal value threshold to catch acquisitions escaping the asset and turnover tests, a settlement and commitment mechanism to close cases without a full contest, changes to the penalty framework, the transfer of the Director General’s appointment to the Commission, and governance reforms for the Commission itself. Not every recommendation was enacted in its original form, and the governing board proposal was not carried through, but the 2023 Act is recognisably the Committee’s programme translated into sections, which is why the trail of the amendment properly begins in 2019.

Q: What is the status of the draft Digital Competition Bill?

It is a draft, not a law. The Committee on Digital Competition Law, constituted in February 2023, submitted its report on 12 March 2024 with a draft Bill proposing ex ante obligations for designated systemically significant digital enterprises providing core digital services, on the model of gatekeeper regulation. The draft was published for public comment. It has not been introduced in Parliament, it has not been enacted, and it imposes no obligations on any enterprise. Commentary describing a digital competition act as already in force in India is inaccurate; the operative digital markets law remains the Competition Act 2002 as amended in 2023, applied after the event.

Q: Has the global turnover penalty base been challenged in court?

Yes. In proceedings arising from the Commission’s investigation into app store practices, Apple has challenged the amended Section 27(b), the Determination of Turnover Regulations 2024 and the Monetary Penalty Guidelines 2024 before the Delhi High Court, contending that a penalty base drawn from global turnover from all products and services is arbitrary and grossly disproportionate, and contesting its application to conduct predating the amendment. The challenge is pending and the provision remains in force while it is heard. Its outcome will decide whether the proportionality reasoning of Excel Crop Care returns as a constitutional limit on the penalty base that replaced it as a matter of construction.