Detection and prosecution are key challenges in cartel enforcement, since cartel participants deliberately conceal their conduct and rarely leave behind any documented evidence of coordination. Given their inherently clandestine nature, circumstantial evidence together with low evidentiary thresholds have been critical in establishing a contravention.

A recent decision of the National Company Law Appellate Tribunal (‘NCLAT’) in Keshav Bihani v. Competition Commission of India (‘Keshav Bihani’)^[1] discusses and endorses the Competition Commission of India’s (‘CCI’) approach to cartel enforcement in an increasingly digital world.

Background

On April 10, 2026, the NCLAT issued its final judgement in Keshav Bihani, upholding the CCI’s finding that seven suppliers of protective tubes had cartelized when supplying to the Indian Railways from June 2015 to June 2020. The cartel involved coordinating bids by fixing prices, allocating markets and controlling the supply for the tubes.

The appellant, Hari Narayan Bihani (‘Bihani’), is a partnership firm that was allegedly inducted into the cartel arrangement in July 2019. Bihani’s role was disclosed by another cartel participant as part of a leniency application. Evidence included emails received by Bihani informing other cartel participants of Bihani’s joining and accordingly modifying market allotments. Bihani’s defence that it did not engage with the senders of the emails and did not receive several of them did not find favour with the regulator. The CCI reaffirmed its established view that receipt of competitively sensitive information from competitors compromises a firm’s independence. The CCI therefore found that not implementing the ‘understanding’ did not absolve Bihani from a finding of infringement.

NCLAT’s Decision

The key question for NCLAT’s consideration was whether Bihani’s indictment, primarily on account of receiving emails without further engagement, was legally sound. Bihani argued that one-sided communication, by itself, did not sufficiently support a finding of tacit agreement. There was no ‘meeting of minds’ between the sender and Bihani, a necessary ingredient for a cartel finding.

The NCLAT rejected this argument. It found that Bihani’s lack of any objection to emails discussing its addition to coordination arrangements and market allocation details evidenced its involvement with the cartel. According to the NCLAT, Bihani’s receipt of emails raised a presumption of knowledge about the cartel, which, in turn, proved its participation.

This ruling reinforces existing jurisprudence on the subject. In Sundaram Brake Linings Ltd. & Ors. v. Chief Materials Manager, South Eastern Railways &          Another,^[2] the NCLAT similarly found that consistently receiving emails for a sustained period without protest or objection is sufficient to indicate an ‘agreement’, and an ‘exchange’ of communication is not necessary.

Direct vs Economic Evidence: SC’s decision in Rajasthan Cylinders

Bihani sought to rely on the Supreme Court’s (‘SC’) decision in Rajasthan Cylinders and Containers Ltd. v. Union of India and Another (‘Rajasthan Cylinders’),^[3] which held that plus factors and circumstantial evidence should be evaluated holistically to distinguish collusive conduct from behaviour that may naturally arise from market conditions, including oligopolistic structures.

The NCLAT rejected this ground by distinguishing this case from Rajasthan Cylinders. In the latter, the CCI had relied primarily on economic evidence, unlike in this case where direct email evidence existed. According to the NCLAT, the two were therefore not comparable. Whether the SC agrees with this distinction remains to be seen.

Key Takeaways

With the NCLAT asserting for the second time that a two-way ‘exchange’ of information is not critical to a cartel finding, communication between competitors assumes greater significance. NCLAT’s reasoning reflects a particularly broad approach to information exchanges. Per Bihani, the receipt of commercially sensitive information may compromise a firm’s independence even where there is no evidence of a concluded agreement or its implementation, and passive acquiescence to such communications may itself be viewed as indicative of participation in a cartel arrangement.

The fall-out of such a rule is on vetting business communication, particularly involving competitors. In light of Bihani, even passive receipt of unsolicited anti-competitive communications raises antitrust risk. Businesses must foster a culture of compliance and equip employees with clear protocols for responding to, escalating, and rejecting such communications.

Implications of Bihani extend beyond traditional cartel communications. In Artificial Intelligence (‘AI’)-driven markets, where platforms, algorithms, or intermediaries can facilitate the dissemination of commercially sensitive information, the passive receipt of commercially sensitive information can undermine a firm’s independence. Competition authorities may increasingly scrutinise AI tools and digital platforms that expose competitors to pricing, output, or strategic information, even in the absence of direct human to human communication.

^[1]     Keshav Bihani v. Competition Commission of India, Competition Appeal (AT) No. 44 of 2022 & I.A. No. 3646, 3647, 3648 of 2022.

^[2]     Sundaram Brake Linings Ltd. v. Chief Materials Manager, South Eastern Railway & Another, Competition Appeal (AT) No. 19/2020.

^[3]     Rajasthan Cylinders and Containers Ltd. v. Union of India, (2020) 16 SCC 615.