No Déjà Vu: How Section 26(2A) Reinvents Res Judicata in Indian Competition Law

Section 26 (2A) of the Competition Act, 2002 (Competition Act) codifies the principle of res judicata1, and states that “the Commission may not inquire into an agreement referred to in Section 3 or conduct of an enterprise or group under Section 4, if the same or substantially the same facts and issues has already been decided by the Commission in its previous order.” (emphasis added)

This article explores the scope of Section 26(2A). It also analyses the Competition Commission of India’s (CCI) decisional practice (prior to Section 26(2A)’s introduction) where despite lack of a specific provision, the CCI has applied the res judicata principle. Section 26(2A) accords the regulator with a wide berth in interpreting the provision in relation to the facts and circumstance of a case. The article aims to gain clarity on how these powers are likely to be exercised.

In 2019, the Competition Law Review Committee (CLRC) recommended codification of the res judicata principle under the Competition Act to expressly enable the CCI to pass closure orders in new enforcement proceedings2 where, either the same or substantially same facts or issues had previously been decided. Thus, the aim was to ensure expediency and avoid repetition of effort in investigation process.3

Prior to introduction of Section 26(2A), several High Courts had taken the view that res judicata had no place in competition law jurisprudence and should not be applied to CCI’s proceedings. For example, the Delhi High Court in Cadila Healthcare v. CCI,4 held that the CCI should not be crippled by technical procedural rules (such as, res judicata). Notably, it was observed that the CCI’s decisions may not be conclusive of the matter in entirety and the entity’s behaviour in the marketplace might not get covered in a single case. The Karnataka High Court made similar observations in Flipkart v. CCI5 wherein it noted that res judicata was not applicable to the case at hand due to significant lapse of time between the CCI’s previous closure order (i.e., Section 26(2) order passed on 6 November 2018)6 and the investigation order under challenge (i.e., Section 26(1) order passed on 13 January 2021).

Despite the views of the High Courts, in the past the CCI has selectively chosen to not initiate new investigation by applying res judicata. An assessment of the CCI’s decisional trend between 20097 to 2024 indicates that the applicability of res judicata is hinged on certain factors, as discussed below:

·       First, when two cases present similar issues / cause of action. For example, in CSC Forum v. CSC e-governance Services India Ltd.,8 the plaintiff contended that a previously decided order (with similar issues against the same opposite party) could not be relied upon since the informant in the earlier case was a beneficiary of the Common Service Centre scheme, and in the present case, the plaintiff was an association of the Service Centre Agencies (i.e., the plaintiff and the informant in the two cases were differently placed entities). The CCI rejected this contention and noted that effects analysis was germane to its decisions, and not the standing of the parties vis-à-vis one another, or the common opposite party / defendant.

·       Second, when there is no change in the market dynamics. For example, in Shri M. M. Mittal v. M/s Paliwal Developers Ltd.9, the CCI while applying res judicata observed that in its three previously decided cases,10 it had already held that the defendant’s parent group was not dominant in the same relevant market (i.e., market for provision of services for development and sale of commercial / office space in Delhi). The CCI ultimately held that there was no reason to deviate from its earlier finding.

·       Third, when the market definitions are different. For example, in Naveen Kataria v. Jaiprakash Associates Limited,11 the defendant argued that the CCI’s previous order (under Section 26(6)12 wherein it was also involved) was a bar to the present case due to res judicata. However, the CCI noted that since the relevant market definition in the previous order pertained to residential apartments, and the instant case pertained to independent residential unit, the two cases were distinguishable from each other.

·       Fourth, when the key case parameters are different. For example, in M/s. Alis Medical Agency v. Federation of Gujarat State Chemists & Druggists Associations13, the defendants (i.e., the associations) contended that the instant case was barred by constructive res judicata because substantially similar issues were raised by the same plaintiff and already settled in a previous order. The CCI did not apply res judicata as the instant case and the previous case (i.e., In Re: Reliance Agency and Chemists & Druggists Association of Baroda (CDAB) & Ors.)14 were different in terms of certain parties, period of investigation and causes of action. Thus, one can discern from the CCI’s order that when case parameters are different, res judicata is not applicable.

·       Fifth, when there is no new material or evidence introduced by the informant to warrant re-investigation of similar issues which have already been decided.15 The reference period to assess if the market forces have evolved could range from a few months to a few years. It is entirely dependent upon the unique characteristics of the concerned market and is typically assessed on a case-by-case basis.

CCI’s first Section 26(2A) order

On 1 August 2025, the CCI passed its first order under the newly introduced Section 26(2A) in Alliance of Digital India Foundation (ADIF) v. Alphabet Inc., Google LLC and Others,16 wherein, ADIF (i.e., the informant) had alleged abuse of dominance against Google in the online search advertising services market. The CCI noted that it had the opportunity to examine and weigh-in on the alleged issues (i.e., alleged unfair and discriminatory conditions imposed by Google upon advertisers as part of its Google Ads policies) in certain previous cases, i.e., Matrimony17 and Vishal Gupta18, respectively. The CCI also observed that once it has passed a reasoned order on an alleged market behaviour, then no purpose is served by inquiring into the same issue unless there is a material change in circumstances.

Moreover, on 11 September 2025, the Bombay High Court in Asian Paints Limited v. Competition Commission of India19 also deliberated on the applicability of Section 26(2A) of the Competition Act. In that case, Asian Paints (i.e., the defendant) had sought to invoke Section 26(2A) in its defence against a new investigation by claiming that a previous order of the CCI20 had already set aside an investigation initiated into its conduct for similar issues. The High Court made certain critical observations regarding Section 26(2A) of the Competition Act:

·       Section 26(2A) is merely a clarificatory provision to what was previously possible under Section 26(2) i.e., the section which enables the CCI to not pursue a complaint;

·       The object of Section 26(2A) is not to create an embargo on aggrieved parties from approaching the CCI with complaints, but to expressly clarify that the CCI is empowered to not entertain a complaint if it is of the view that the new and the previous complaint are “founded on similar or substantially identical facts or issues”; and

·       Given the discretionary powers afforded to the CCI under Section 26(2A), it need not provide a reasoning in its initiation order as to why Section 26(2A) is not applicable. This is relevant for situations where the CCI has closed an investigation in a previous case and initiates investigation in a subsequent case.

Conclusion

In practical terms, our sense on Section 26(2A) of the Competition Act is as follows:

·       If history is anything to go by, then even if there are new complaints with either, same or substantially similar facts or issues, the CCI will at least conduct a preliminary effects analysis. It is unlikely that it will pass a summary order dismissing a new complaint or refuse to take something meaningful on record merely on the basis of Section 26(2A).

·       Dominant enterprises may not find much reprieve if they don’t amend their ways: usually, the lifecycle of an enforcement proceeding (including various appeals) is in excess of ~7 years. Enterprises that are inter-alia subjected to behavioural remedies as part of the CCI’s first order would have to be mindful of their behaviour till they succeed in the appeal – as there always lies the possibility of a second investigation which cannot be easily thwarted by invoking Section 26(2A).

·       This provision may not be relevant in certain low-hanging enforcement actions despite there being no express exclusions in the law such as: (i) cartel investigations – the CCI has examined each cartel conduct separately. For example, the multiple proceedings initiated into public procurement cartels21; or (ii) typical complaints in the pharmaceutical sector involving Chemist and Druggist Associations.22

·       Emboldened by the favourable verdict of the Bombay High Court (which was later upheld by the Supreme Court)23, it is likely that the CCI will selectively pass orders under Section 26(2A) as it can and will claim that Section 26(2A) is only a clarificatory provision. When the CCI orders a second probe, and the defendant claims res judicata, the CCI is less likely to pass a reasoned order as to the non-applicability of Section 26(2A).

·       Section 26(2A) orders can be appealed to the NCLAT and then the Supreme Court. So, the CCI’s decision must be reasoned enough to stand up in court, or the case might be sent back for review.24

• 1                 Section 26 (2A) was inserted in the Competition Act by way of the Competition (Amendment) Act, 2023 and came into force on 18 May 2023.
• 2                 Section 26 of the Competition Act lays down the procedure for inquiry under Section 19 of the Competition Act. Section 19 provides for inquiry into certain agreements (Section 3) and dominant enterprises (Section 4) by the CCI on its own motion, or information received under Section 19, or reference made by the Central or State Government or any statutory authority.
• 3                 See page 75 of the Report of the Competition Law Review Committee, 26 July 2019. Available here.
• 4                 See paragraph 59 of (2018) 252 DLT 647, Delhi High Court, dated 12 September 2018.
• 5                 See paragraph 42 of Karnataka High Court, Division Bench, Order dated 23 July 2021; see also: page 27 of Intel Technology Pvt. Ltd. v. Competition Commission of India, W.P. No. 50727 of 2019 (GM-Res), Karnataka High Court, dated 23 August 2022.
• 6                 Case No. 20 of 2018 All India Online Vendors Association v. Flipkart India Private Limited & other, dated 6 November 2018.
• 7                The enforcement provisions of the Competition Act came into effect on 20 May 2009.
• 8                Case No. 93 of 2014,dated 24 March 2015.
• 9                See paragraph 11 of Case No. 112 of 2015,dated 25 February 2016.
• 10               Case No. 85 of 2014 Ravinder Kaur Sethi v. DLF Universal Limited & Ors, dated 29 January 2015; Case No. 50 of 2012 Shri Kaushal K. Rana v. DLF Commercial Complexes Ltd.,dated 13 December 2012; and Case No. 15 of 2012Owners and Occupants Welfare Association v. M/s DLF Commercial Developers Ltd. & Ors.,dated 4 July 2012.
• 11               See paragraph 52 of Case No. 99 of 2014,dated 9 August 2019.
• 12               Case No. 72 of 2011 Sunil Bansal & Others v. M/s Jaiprakash Associates Ltd. & Others, Case No. 16 of 2012 Shri Deepak Kapoor v. M/s Jaiprakash Associates Ltd. & Others, Case No. 34 of 2012 - Shri Tarsem Chand & Other v. M/s Jaiprakash Associates Ltd. & Others, Case No. 53 of 2012 - Shri Sanjay Bhargava & Others v. M/s Jaiprakash Associates Ltd. & Others, Case No. 45 of 2013 - Shri Raghuvinder Singh v. M/s Jaiprakash Associates Ltd. & Others, dated 26 October 2015.
• 13               See paragraph 92 of Case No. 65 of 2014M/s. Alis Medical Agency v. Federation of Gujarat State Chemists & Druggists Associations & Ors.,dated 12 July 2018.
• 14               Case No. 97 of 2013, dated 1 April 2018.
• 15               See paragraph 22 of Case No. 15 of 2021Pankaj Rai v. NIIT Ltd., dated 1 July 2022.
• 16               Case No. 23(2) of 2024 Alliance of Digital India Foundation v. Alphabet Inc., Google LLC & Ors., dated 1 August 2025.
• 17               Case No. 7 and 30 of 2012 (07/2012) Matrimony.com Limited v. Google LLC & Others (30/2012), Consumer Unity & Trust Society (CUTS) v. Google LLC & Others, dated 31 January 2018.
• 18               Case No. 6 and 46 of 2014 Shri Vishal Gupta v. Google LLC & Others (06/2014), Albion InfoTel Limited v. Google LLC & Others (46/2014), dated 12 July 2018.
• 19               See paragraphs 27-34 of Asian Paints Limited v. Competition Commission of India (2025 SCC OnLine Bom 3196), Bombay High Court, dated 11 September 2025. This order was subsequently appealed before the Supreme Court of India in Asian Paints Limited v. CCI (SLP(C) No. – 028923-2025), dated 13 October 2025.
• 20               Case No. 36 of 2019 JSW Paints Private Limited v. Asian Paints Limited,dated 8 September 2022.
• 21               See: Cases pertaining to bid rigging and collusion in tenders floated by Pune Municipal Corporation for solid waste processing in Case No. 50 of 1015 In Re: Nagrik Chetna Manch and Fortified Security Solutions,dated 1 May 2018; Suo Moto Case No. 3 of 2016 In re: Cartelization in Tender Nos. 21 and 28 of 2013 of Pune Municipal Corporation for Solid Waste Processing,dated 31 May 2018; and Suo Moto Case No. 4 of 2016 In re: Cartelization in Tender No. 59 of 2014 of Pune Municipal Corporation for Solid Waste Processing,dated 31 May 2018.
• 22               See: Cases pertaining to limiting supply of medicines / drugs by non-issuance of No Objection Certificate to stockists by certain Chemist and Druggist Associations in Case No. 4 of 2020 In Re: Alleged anti-competitive practices by the Chhattisgarh Chemist and Druggist Association in limiting supply of drugs/medicines in the State of Chhattisgarh,dated 5 July 2022; Case No. 36 of 2015 Shri Suprabhat Roy v. Bengal Chemists and Druggists Association,dated 12 March 2020; Case No. 64 of 2014 Madhya Pradesh Chemists and Distributors Federation (MPCDF) v. Madhya Pradesh Chemists and Druggist Association (MPCDA) & Others,dated 3 June 2019; C-87/2009/DGIR Vedanta Bio Sciences, Vadodara v. Chemists and Druggists Association of Baroda,dated 15 January 2019; Case No. 20 of 2011 Ms. Santuka Associates Pvt. Ltd. v. All India Organization of Chemists and Druggists,dated 19 February 2013; Case No. 97 of 2013 Reliance Agency v. Chemists and Druggists Association of Baroda & Others,dated 1 April 2018; Case No. 65 of 2014 M/s. Alis Medical Agency v. Federation of Gujarat State Chemists & Druggists Associations & Others,dated 12 July 2018.
• 23               Asian Paints Limited v. CCI (SLP(C) No. – 028923-2025), dated 13 October 2025. 
• 24         Sections 53A and 53T of the Competition Act.