Thread by @barandbench

#SupremeCourt hearing an application by Google seeking stay of the order by Competition Commission of India requiring extensive changes to the search giant’s Android mobile platform by January 19.

@Google @CCI_India

Hearing begins.

Senior Advocate Abhishek Manu Singhvi outlines structure of his arguments.

Singhvi: Lordships rightly said this matter duplication is not required.

Impugned order is a series of non reasons. Based on misapplication of a parliament standing committee report. Where is the law here?

#SupremeCourtofIndia

Singhvi: First is my lords, unlike ... The Android ecosystem. I have become more tech savvy appearing for Google.

CJI: You still have papers in your hands. Just look at your juniors and follow suit.

Singhvi: I assured only for Constitution Bench (smiles).

Singhvi points out how Android is not a closed ecosystem unlike Apple.

Singhvi: Open source, 15,000 smartphone models. Apple has only 1. 500 million compatible devices only in India, this is the Android revolution. 1500 global manufacturers or OEMs.

#SupremeCourtofIndia

Singhvi: An app developer, of which there are millions, their apps run on all 15,000 models. I am an Apple user, but this is at the heart of Android ecosystem and i am accused of anti competitive behaviour.

#SupremeCourtofIndia

Singhvi: Heart of the maximum competition in Android smartphones is Google. To promote, strengthen, reinforce this ecosystem is my ....

One bad Apple brings bad name to entire ecosystem. We only say that you cannot go below baseline standards.

Singhvi: Impugned order says i must license my proprietary software. We have an anti fragmentation agreement.

Singhvi explains Google's MADA rules (Mobile Application Distribution Agreement).

Singhvi: These are rules for multiple play stores. People tend to install multiple. Indians download the most.

#SupremeCourtofIndia

Singhvi: It is a la carte because I do not want to inhibit. But the Google maps like Gmail, YouTube, Maps, Drive, Play movies and TV, Photos, Duo.

I forgot to add two, Search and ...

Bench discusses.

Singhvi: These are all in one folder along with Chrome browser from before.

CJI: Why should you insist on Chrome?

Singhvi: It cannot be anti competitive.

CJI: But if you insist on a bouquet. You lose open source ... It affects choice to consumer.

CJI: All that you have us goes against you. Look at the market you hold, with that line of penetration of you insist on your bouquet.

Singhvi: Google there because of excellence not dominance.

#SupremeCourt #Google

Singhvi: There are rival play stores, rival browsers, rival video players.

Sr Adv Mukul Rohatgi: Please give us a copy of what you are reading.

Singhvi: Lordships promote excellence.

Justice Narasimha: where are the pictures where Google apps bouquet are with rivals?

#SupremeCourtofIndia #SupremeCourt

Singhvi: Look at the number of people existing voluntarily. Till 2023 it has been like this, now in 4 months it cannot be ? Where is the balance of convenience?

#SupremeCourtofIndia

Singhvi: Third direction is, highly objectionable, rival play store owner should be able to sit inside my play store. Can CCI ever give a direction like this? A rival person. Mine is voluntary, optional, free.

#SupremeCourtofIndia

Singhvi: How do I control security, malware? No direction anywhere else in the world (like this). Unfortunate non innovation. This direction given without any evidence of abusive dominance.

CJI: Alright should we call upon other side.

#SupremeCourtofIndia

Singhvi: two minutes. These are Judicial matters not that of prejudice.

#SupremeCourtofIndia

Singhvi: 19th (Jan) was cast in stone. I will have to give my software. No such directive in EU.

Singhvi: OEM chooses the best in the market, google is always selected since it is the best in the market. OEMs decide to have google as a pre-installed app and user can uninstall. no restriction on uninstalling.. no finding on abuse of dominance

@GoogleIndia #CCI

Singhvi: no direction by European commission, or abuse of dominance. there is nothing today to show that european act is relevant in this case. there was a parliamentary standing committee report and i chaired 3 of them.

@GoogleIndia #CCI

Singhvi: parliamentary committee has to recommend, it has to go the chairman of the house and then it is recommended to the government. European law DMA (Digital Marketing Act) is irrelevant for India.

@GoogleIndia #CCI

Bench to resume hearing at 2 pm @GoogleIndia
#CCI

Singhvi: there was no finding of abuse of dominance by any other jurisdiction.

@GoogleIndia

#CCI

Singhvi: EC did not direct any for uninstalling. only CCI. EC gave a limited direction for unbundling search and chrome from Google Play.

@GoogleIndia
#CCI

CJI: Dr Singhvi we can be ahead of the European Union as well right. EU may be a benchmark for us to not fall behind but we can surely move ahead. look at the nature of EU market and my market

@GoogleIndia
#CCI

CJI: We cannot lose sight of the peculiarities of our market. the depth and penetration of the market. data is cheap today because of the mass and consumption therein

Singhvi: it is all android and they are spread across the depth

@GoogleIndia

#CCI

Singhvi: stay in google is limited to only 2 or 3 issues. That is all. there has been no investigation or finding of abuse. my first appeal is pending in april.

@GoogleIndia

#CCI

Singhvi: if something is happening for 20 years, what will happen if there is an extension of three months. where will Google run away?

CJI: Yes we know google will not do that.

@GoogleIndia

#CCI

Singhvi: please hear it here. I am ready to lose my right of first appeal

CJI: But have you enforced it?

Singhvi: no we have not. My second prayer is that NCLAT hears it.

Singhvi: criminals can two appeals at times three but under competition law I do not even get one?

ASG Venkataraman: we have seven grounds. this is a direct ridicule of the quasi judicial authority. we rely on EC not because we have to follow it, whole case of CCI is post decision of EU, what steps have been taken. no cut copy paste submission by us?

@GoogleIndia

#CCI

CJI: Suppose they are directed to comply today will that lead to irreversible action and appeal becomes infructuous?

ASG: There security is market slavery. we are on conduct post the order.

ASG: Google is talking about security. So when you do this in Europe, you have no security threat. But in India threats? This is continued market slavery and this is feudalistic @GoogleIndia

ASG: if a stay is there.. then stay in NCLAT... then hearing come here... then 2.5 years gone. its already gone from the 2026 deadline set up by us.

CJI: one of the submissions as per sec4 and 18, he says CCI has not decided abuse of dominance #Google

ASG: all these findings have created a statutory infraction. Google prohibits uninstallation of google maps @GoogleIndia #CCI

ASG: These new licensing operations had to come in effect in 2018 and now he says he will comply in 3 months. 3 years it has been. @GoogleIndia

ASG: Size of mobile phone market as on 2021 is 540 billion euros. We aim to have tier 2 and 3 companies to develop here. Have local manufacturing here. this is our roadmap from 2021 to 2025-26 @GoogleIndia

ASG: Competition law is democratizes business and stops an feudalistic practice. any stay will create an hurdle. @GoogleIndia

Sr Adv Mukul Rohatgi: No material to show that 618 is being be complied with. If it was complied with, we could get phones without mandatory apps @GoogleIndia

Rohatgi: Mandatory pre installation of apps reduces incentive to download anything else. There is no reason for India not to be treated at par.

@GoogleIndia

Rohatgi: you cannot treat the laws of this country as laws of third world. @GoogleIndia

Map My India counsel: Apps are bundled. If OEM wants to download one app, it has to take all. CCI found that each one of them were technically independent

Justice Narasimha: all of these points are covered

Map my India Counsel: after detailed probe spanning years, CCI has given a reasoned finding. It is argued that CCI has not found abuse of dominance. but let me just show that..

Singhvi: there is an admission by AG. There is nothing by him on 1,2,3,4 where I say that there is nothing on abuse of dominance

CJI: but there is a presumption which arises.

Singhvi: I am saying that his own submissions show that his own directions apply to only MADA and RSA. Does this not require a hearing? we can comply with 4 EC directions and this court can hear the matter then

Singhvi: MADA is affordable. Otherwise installing charges will be passed on to users. i have got no hearing on my interim relief. there is a procedure in the act. @GoogleIndia

Singhvi: on the screen point. EU gave me 9 months and I can do it in 4 months @GoogleIndia

Singhvi: Google is so successful that OEMs pre-install them. others can also be pre-installed, sideloaded, downloaded etc. please do not defeat my right of substantive remedy @GoogleIndia

Invoking Section 53(3) of competition act, NCLAT order of Jan 4 2023 is challenged. The NCLAT is in session of the competition appeal arising from the order of CCI dated Oct 20, 2022: CJI

While admitting the appeal, the NCLAT has directed that Google deposits 10 percent of the penalty quantified by the CCI order within 3 weeks, However, no stay has been granted in respect of the rest of the directions of the CCI which leads to this appeal before SC: CJI

Grievance is while on one hand NCLAT has noted that urgency has been shown to pass interim order, appeal has been directed to be listed for final hearing on April 3, 2023: CJI

but there is no expression of opinion on merits of order in appeal with a view to evaluate whether interim stay can be granted : CJI

NCLAT noted that appeal was filed 2 months later and when the appeal was taken up on Jan 4, an application for interim stay was pressed. NCLAT has not granted an interim stay: CJI

Dr Singhvi for Google states that SC may decide merits of the application for grant of interim stay though NCLAT has not done so; NCLAT is seized of statutory appeal which should not be rendered infructuous by appellate forum for not deciding merits of application: CJI

Dr Singhvi says they are willing to partially comply with CCI order for more particularly directions contained 617.1, 617.2, 617.4 and 617.5 namely google would ensure the unbundling of only (1) search in chrome from play (2) chrome from search: CJI

In terms of the decision of the EC dated July 18, 2018, Google would ensure that the search app preinstallation exclusivity only on portfolio wise RSAs would not be pursued, says Google: CJI

Dr Singhvi urges that Order by CCI suffers from manifest error and there is no finding on abuse of dominance in India. Before we consider the submissions by appellants, it must be noted that ASG Venkataraman appeared for first respondent and Sr Rohatgi for intervenors: CJI

CJI: The NCLAT has listed the appeal for final hearing on April 3 and has therefore not entered into detailed analysis of the correctness of the order by CCI. This court has the power to remit the matter back to NCLAT to be heard on merits or grant interim relief

CJI:We adopt second because remitting matter for detailed hearing would necessitate lengthy arguments and would delay the April hearing. secondly, since the entire proceeding is pending before NCLAT in appeal in assessing merits of order of CCI to decide if interference needed

CJI: At this stage it is important to note the directions issued by CCI. In 620 CCI has quantified the penalty levied on appellants as a percentage of total turnover of 2018-19. 19-20, 20-21. Dr Singhvi urged that there is no finding on abuse of dominant position in India

CJI: Prima facie findings by CCI in para 485, 486, 487 and 488 may be noted at this stage. CCI has also observed in paras 468, 469, 470. these findings cannot be regarded as contrary to the weight of the record at interlocutory stage

CJI: We resist from entering into merits since matter is pending in appeal by NCLAT. Findings arrived by CCI cannot be held to be without jurisdiction or manifest error at interlocutory stage.

CJI; While we are not interfering with order of NLCAT. We request the tribunal to dispose off the appeal by March 31, 2023. parties to approach the tribunal with certified copy of this order within 3 days and President of NCLAT to indicate time schedule for early disposal

BREAKING: CJI: We affirm the order of NCLAT declining interim relief. #SupremeCourt @GoogleIndia

CJI: Time for compliance with order of CCI stands extended by one week. #SupremeCourt @GoogleIndia