From Mainframes to Mandates: Reading India’s Digital Competition Bill with Randal Picker

In memory of Randal C. Picker (1959–2026)

This post uses Professor Randal Picker’s last lecture to test India’s proposed Digital Competition Bill (DCB). I argue that platforms should be designated for ex ante regulation by whether rivals depend on them to reach customers, not by their size, that each obligation should answer a specific way in which a platform keeps rivals out, and that the DCB should state how it relates to the intellectual property statutes.

Professor Randal C. Picker of the University of Chicago Law School died unexpectedly on 15 August 2026, aged 66. He taught there from 1989 and wrote across antitrust, intellectual property and technology. Former students and colleagues have written on how his teaching shaped their own careers. This post reads his last public lecture and other related work against a ‘question’ which is before Indian policymakers.

In Rome on 13 March 2026, Professor Picker spoke on 'From Mainframes to Mandates'. He traced 80 years of computing, from ENIAC to Apple Silicon, to show how antitrust, intellectual property and the design choices of firms had opened platforms to competition or closed them off. His conclusion was cautious. He argued that the regulators should be sceptical of reflexive structural remedies and should look closely at what allows competition to grow.

India is now deciding what its own mandates should be. The Committee on Digital Competition Law proposed an ex ante regime in its 2024 draft Bill. In replies to the Standing Committee on Finance, tabled in Parliament on 10 August 2026, the Ministry of Corporate Affairs said it would take ‘an evidence-based and adaptive approach’ and has commissioned a market study on the designation thresholds and the list of core digital services. The Committee has asked the Ministry to refine the thresholds so that fast-growing domestic firms are not captured, and to let a designated firm rebut its designation. At consultations in September 2026, large technology firms reportedly accepted ex ante rules in principle, but expressed their concern about regulatory uncertainty, due process and proportionality of the obligations under the DCB. Professor Picker’s lecture bears on three parts of this design.

Thresholds measure size

The 2024 draft identifies a ‘Systemically Significant Digital Enterprise (SSDE)’ mainly by turnover, market capitalisation, gross merchandise value and user numbers. Section 3(3) of the draft also lets the Competition Commission of India (CCI) designate an enterprise that falls below these numbers, on qualitative factors that include market structure and the scale of its activities. The first route measures size; the second looks at the firm’s position in the market. Professor Picker’s lecture supports the second route. His lecture looked at how competition law, intellectual property and the firms’ own design choices decided whether rivals could get onto a platform. The real question, then, is whether rivals depend on a firm to reach their customers, for instance because it controls the interfaces or the licences they need. Turnover and user numbers cannot tell us that. The qualitative route at least asks the right question.

The Committee’s concern for young Indian firms is fair, since a start-up should not carry costs designed for gatekeepers. But age and origin are no better tests than size. The Ministry itself told the Committee that the Commission has ordered investigations into Zomato and Swiggy, among others. In a report of March 2024, the Commission’s Director General found, according to Reuters, that both firms used exclusive arrangements with restaurants that held back competition. No final order has been passed, and both firms have contested the report. Even so, the allegation is enough to show that an Indian platform can possibly foreclose a market as effectively as a foreign one. Press reports of July 2026 suggest that the Ministry may raise the thresholds so that the law reaches Google, Meta, Apple and Amazon; but not Zomato, Swiggy or Flipkart. If that is done mainly to keep domestic platforms out, the DCB would exempt firms just because they are Indian, and not because they pose less risk to competition. That would be an industrial policy, but not competition law.

Mandates are design rules

The obligations in the 2024 draft include bans on self-preferencing and on tying, limits on the use of non-public business-user data, and freedom for users to install third-party applications. Each is a rule about how a platform is built. Professor Picker thought about such rules long before the Rome lecture. In a 2002 article on the remedy in the United States Microsoft case, he argued that Microsoft had added software to Windows to raise its rivals’ costs of reaching users, and that breaking up the company would not cure this. He proposed instead that computer makers be free to choose which programs appeared on the Windows desktop, that Windows be offered with and without any new software Microsoft added to it, and that these rules lapse, perhaps after three years. That is a design mandate aimed at a specific harm, so the Indian mandates are not misplaced in principle.

His caution was directed at structural remedies, but I would extend it to conduct rules as well. Each obligation should answer a specific way in which a firm keeps rivals out, as Microsoft’s bundling did, and a designated firm should have a fair opportunity to justify a design on grounds of security, privacy or efficiency. The Standing Committee points the same way. It has asked for ‘a nuanced approach’ in the Bill, ‘avoiding blanket prohibitions and allowing for context-specific assessments’, and the Government has accepted that recommendation. A list borrowed from the EU’s Digital Markets Act (2022) without that link risks becoming the reflex he warned against.

Intellectual property is part of access

The third point is the one an intellectual property lawyer is best placed to make. Professor Picker argued that copyright law sets much of the entry policy for digital distribution. Indian appellate forums have moved the other way, by placing conduct based on intellectual property outside competition review. In Telefonaktiebolaget LM Ericsson (PUBL) v. Competition Commission of India (13 July 2023), a division bench of the Delhi High Court held that the Patents Act, 1970, as a special statute, prevails over the Competition Act, 2002 on the abuse of patent rights. The Supreme Court dismissed the Commission’s appeals on 23 September 2025 because the parties had settled, and kept the questions of law open. In Swapan Dey v. Competition Commission of India (30 October 2025), the National Company Law Appellate  Tribunal (NCLAT) held that the Commission could not examine a dominance complaint about a patented drug. However, on 2 February 2026, the Supreme Court stayed that finding and agreed to decide whether the Commission may examine conduct arising from patent rights.

Two things follow for the Bill. First, section 3(5) of the Competition Act protects the right to restrain infringement and to impose reasonable conditions for protecting intellectual property rights, but by its own words it applies only to agreements under section 3. There is no like saving for abuse of dominance under section 4, yet the Tribunal drew on section 3(5) in a dominance case. Second, the 2024 draft does not settle how its obligations sit with the intellectual property statutes, and the Standing Committee’s report of August 2026 does not mention intellectual property at all. A platform can restrict access through patent licences, software copyright or the terms on which it opens its interfaces. If the Supreme Court accepts the special-statute reasoning, an ex ante regime that leaves this point open may not reach such conduct at all. The revised Bill, therefore, should state expressly how its obligations relate to those statutes.

Remembering the method

Professor Picker’s method was to study the history of a technology before proposing a rule for it. The market study gives India the same chance. The question to ask of each threshold and each obligation is whether it opens access that rivals need. That would be a fitting way to remember him.

Sajid Sheikh is Assistant Professor of Law at Maharashtra National Law University Mumbai, India.