[Ayan Anand Rath is a second-year student at Hidayatullah National Law University. In this piece, the author interrogates the regulatory failure underpinning the Indian telecom oligopoly, where incumbent operators weaponize jurisdictional fragmentation to transform TRAI’s technical expertise into a cartel shield. The piece argues that this shield can be shattered through a strategic reinterpretation of the CCI’s jurisdiction over economic abuse, the deployment of BSNL as a competitive counterweight, and the legislative closure of the collective dominance gap.]
Introduction
Jio entered the telecommunications industry and sparked a fierce competition that has empowered millions of Indian citizens. That era ended when all telecos raised their prices by 25% within forty-eight hours of each other. Why is TRAI silent when it is designed to protect fair markets? The answer lies in a legal loophole that has paralysed our competition regulator. This piece argues that the Indian telecom market has slipped into a de facto oligopoly substantiated by the jurisdictional deadlock between TRAI and the CCI, and that this deadlock can now be broken through targeted litigation strategy, a reinvigorated BSNL, and updated legislative tools.
Before Jio’s entry, the telecom market was hyper-fragmented with over a dozen operators; this ensured consumer choice and prevented any single player from ruling the market. However, following a predatory dip and severe cash-burn phase initiated by Jio‘s entry in 2016, incumbents bled out, and major players like Aircel and Reliance Communications ceased operations, while Vodafone and Idea were forced into a survival merger. This resulted in the market becoming a 2.5-player oligopoly by 2026, with the private sector controlling over 92% of the subscriber base.
This consolidation has led to a “recoupment phase,” by the operators as they are clawing back money lost during the price wars. Thus, the competitive era is officially over, marked by all surviving telcos synchronously raising their prices by 20-25% within forty-eight hours of each other.
Origin of Jurisdictional Shield leading to the legal loophole
The legal loophole has stemmed from a conflict between the Competition Act and the TRAI Act, and created a regulatory deadlock in which the Indian telecommunications sector is currently stuck, which can be termed the “Sequentiality Trap.” This stems from the 2018 Supreme Court judgment in Competition Commission of India v. Bharti Airtel Ltd., where the Supreme Court held that disputes involving technically specialised matters fall within TRAI’s primary domain, and that the CCI must await TRAI’s findings before it can step in. Due to this, the Competition Commission of India (CCI) is limited to a secondary role as a “second check”, creating a procedural gate: so long as TRAI does not return an adverse finding, the CCI’s hands remain tied, regardless of what is happening in the market.
At the time, this sequential approach made sense as that particular dispute was about a highly technical issue that is “Points of Interconnection”, and CCI’s interference here would result in overstepping into engineering problems, which it didn’t understand. The Supreme Court also held the same. However, today, this “sequential” requirement of TRAI first and CCI later has effectively led to a duopoly and a regulatory deadlock. Additionally, TRAI rarely finds tariffs illegal since TRAI operates on a policy of tariff forbearance (¶1.11), according to which market forces should determine the price, not the regulators; consequently, because of this, no “Jurisdictional Fact” is established as TRAI finds no technical fault in the prices (cl 2(g)). While the CCI remains barred from investigating, even if the market shows clear signs of cartelization.
Post-Airtel Jurisprudence & JioStar
While historically the CCI was barred from investigating due to the Bharti Airtel decision, recent jurisprudential developments have significantly loosened this hold. The Delhi High Court itself, in the WhatsApp privacy case, distinguished the Bharti Airtel precedent and clarified that the CCI is an independent body capable of investigating antitrust violations without waiting for a sectoral regulator. Similarly, in Monsanto Holdings Pvt. Ltd. v. Competition Commission of India ruling of the Delhi High Court affirmed that Bharti Airtel does not universally bar the CCI’s jurisdiction.
Furthermore, the recent judgment in JioStar India Pvt Ltd v. CCI (2025) plays an essential role in bypassing this deadlock. The Kerala High Court distinguished between “Technical” and “Economic” compliance. It ruled that the 2018 precedent applied only to technical issues requiring TRAI’s engineering expertise. Current telecom issues, such as discriminatory pricing and sham marketing agreements, are “Economic Trade Practices”. The Court affirmed that for allegations of economic abuse, the CCI does not need to wait for TRAI.
This judgment can be cleverly reframed to allege Unfair Trading Conditions under §4 of the Competition Act, effectively bypassing TRAI’s Forbearance policy. One such complaint is that the simultaneous removal of prepaid plans by all big telecom operators has effectively forced countless consumers with low-level income to upgrade against their wills. This constitutes a situation where competing firms collectively withdraw a product or service tier from the market as a unified strategy to eliminate a lower-priced option and compel consumers to spend more rather for any independent business reason, a practice known as “Coordinated Refusal to Deal,” and since this is an economic strategy to maximise revenue and not a technical spectrum issue, it allows the CCI to assert immediate jurisdiction, especially after the Supreme Court dismissed the appeal against the JioStar ruling in January 2026.
The Legal Gap: Why India is Vulnerable
Beyond the procedural “Sequentiality Trap,” the current abuse of the shield is also enabled by a specific gap in Indian law that is the absence of collective dominance provisions, in jurisdictions like the European Union, their competition law terms such dominance as “Collective dominance“ where two or three firms effectively act as one entity to dominate the market without any formal agreement or ties. The EU can penalise firms that tacitly coordinate to choke competition, but in India, §4 of the Competition Act applies only to a “ dominant group“ (defined strictly by ownership or structural links) or a “dominant enterprise“.
Since Jio, Airtel and Vodafone share no equity connections, they cannot be “jointly” held liable for abusing their collective dominance, this results in Jio or Airtel not being liable by claiming the defence of Conscious Parallelism ( a situation where competitors independently mirror each other’s pricing or business moves without any explicit agreement or communication.) and while they are claim to be following the leader rather than a conspiracy under §3 (Anti-competitive agreements), the “Sequentiality Trap” prevents the CCI from investigating if there is deeper collusion involved.
Weaponizing BSNL as the “Maverick Firm”
In antitrust economics, a “Maverick Firm“ is a competitor that refuses to participate in tacit collusion and thus destabilizes the price coordination of the dominant players. Internationally, this concept has proven highly effective at correcting broken telecom markets. For instance, in France, Iliad’s “Free Mobile” joined the stagnated three-player telecom oligopoly in 2012, which in turn reduced prices significantly and rapidly captured a massive market share, forcing incumbents to lower their rates to compete. Similarly, T-Mobile utilized an aggressive “Un-carrier” strategy in the United States to successfully disrupt the pricing power of the dominant AT&T and Verizon duopoly. BSNL is currently very well positioned in the Indian market to play this role.
To support my point lets look at last year’s data, where dominant players like Jio, Airtel, and Vi hiked their prices by 15-25% in July 2024, but BSNL froze its prices, and after that, BSNL alone added approximately 2.5 to 4 million active subscribers during August. This shows the immediate and violent market reaction. Conversely, on the other hand, the private players had suffered a massive attrition; Reliance Jio lost about 4 million users, and Bharti Airtel lost about 2.4 million. This proves that the Indian consumer remains highly price-sensitive and will switch if a viable alternative exists, and becomes empirical proof that the private oligopoly can be vulnerable to BSNL.
However, acting as the envisioned market disruptor will require immense financial muscle, which raises the critical question if BSNL’s internal revenue is even sufficient. Currently, BSNL’s operational revenues hover around ₹19,000 to ₹25,000 crore annually, and BSNL’s recurring costs consist of massive legacy operational and salary expenses. This means that its internal accruals is not sufficient to aggressively challenge a deep-pocketed private duopoly, though to bridge this gap, the Indian government has heavily subsidized BSNL with public taxpayer money through multiple massive revival packages, these include, a ₹69,000 crore in 2019, a ₹1.64 lakh crore in 2022, and a ₹89,047 crore package in 2023 that aimed at 4G/5G spectrum allocation and now with over ₹3.2 lakh crore of taxpayer money pumped into the state-run telco, the government not only has a fiduciary duty to utilize BSNL as a dormant public asset, but also as an active regulatory weapon to protect the taxpayers from cartelized pricing.
For this massive investment of public funds to yield results, BSNL cannot rely solely on bailouts, but it will have to implement some fundamental and rapid changes in its operations to be able to adapt to the current shifts in the market. Pumping capital into a sluggish bureaucracy will only drain the public’s funds. BSNL has to completely shed its legacy public-sector inertia. This will require it to adapt an aggressive, agile marketing strategy, while also performing a massive overhaul in customer service quality, and ensuring the rapid deployment of its network technologies. To formalise this, the government must utilise a “Price Ceiling” strategy by rolling out BSNL’s 4G and 5G using the indigenous technology stack (TCS/C-DOT). This will help BSNL stabilise its network and capture 15–20% of the market, up from its current ~8%.
As in a cartel, members know competitors will match the prices they set. However, if BSNL consistently prices its services 30–40% lower, the private operators cannot raise their tariffs indefinitely without triggering a mass exodus of subscribers. BSNL effectively becomes the “regulator in the market,” capping the pricing power of the duopoly without the need for government price controls.
Designating Telcos as “Systemically Significant Digital Enterprises” (SSDE)
Finally, India is trying to modernise its regulatory toolkit by adopting the Ex-Ante framework proposed in the Digital Competition Bill, 2024, which is similar to the EU’s Digital Markets Act and targets companies based on qualitative features that haven’t crossed economic thresholds under §3(4) but can cause an appreciable adverse effect on Competition. Currently, Indian law is ex-post. Designating telcos as SSDEs will allow regulators to set binding rules on telcos in advance, before any harm occurs, rather than waiting for harm to occur, thus shifting the regime to “Ex-Ante” regulation. Telecom operators often argue they are merely infrastructure providers, playing the role of “dumb pipes” for the internet. However, the reality has drastically changed. Players like Jio and Airtel operate massive, interconnected digital ecosystems encompassing OTT platforms (JioCinema, Airtel Xstream), fintech apps (JioPay, Airtel Payments Bank), and cloud storage.
Under the Draft Bill, these operations by telecos fall under “Core Digital Services“ (CDS), which include online intermediation, video-sharing platforms, cloud services, and interpersonal communications. The enterprise to be classified as a Systemically Significant Digital Enterprise (SSDE) must also meet quantitative thresholds, such as an Indian turnover of ₹4,000 crore, a global market cap of $75 billion, or a user base of at least 1 crore end-users in India. Lastly, the CCI evaluates qualitative criteria of the company, like their market influence, data control, and ability to lock in users. Given their massive subscriber bases, dominant market share, and deep pockets, the top telecom operators easily clear these thresholds and would be officially classified as SSDEs.
However, following the withdrawal of the Bill in late 2024, this “Ex-Ante” path is effectively closed. The government surrendered the SSDE classification to avoid “stifling innovation,” forcing a pivot back to the “Ex-Post” regime. Due to this, the dominant duopoly can continue to exploit its advantage without any upfront guardrails.
Conclusion
The era of high competition that led to the digital transformation of India is slowly being overshadowed by a strict oligopoly of 2.5 players. This transition was made with the help of the “Jurisdictional Shield” loophole. This procedural defence forced the CCI to wait for TRAI to resolve and determine technical disputes first, thereby obscuring antitrust intervention when regulatory authorities were not taking action.
However, CCI has the tools needed to break this shield. Transitionally, a rejuvenated BSNL would have the power to break the price coordination. Legally, the JioStar v. CCI (2025) decision gives the CCI the power to examine economic abuse without the TRAI’s prior permission.
The question then becomes not whether or not CCI action is possible, but when the political will is needed to implement these mechanisms. The shield should be broken so that the digital future of India is ruled by innovation and access, as opposed to the dictates of a duopoly that is monopolised.