Online Gambling Is Legal In India
- Gambling Laws in India. The world is swiftly moving towards a more liberal viewpoint towards games of ‘skill’; Indian gambling and online gaming laws are either archaic or non-existent. The current government hasn’t put forth any dedicated gambling laws in India, and this century has hardly seen any techno-leg.
- Ahmedabad, Oct 13 (PTI) The Gujarat High Court has directed the state government to look into the issue of online gambling, and take action in accordance with the law in larger public interest.
Form of online gaming that has transformed physical sports into virtual sports, e-games, e-sports, online games, fantasy sports, etc. As on date we have no dedicated online gaming and online gambling laws in India. Similarly, we have no dedicated fantasy sports law in India till now. This is in line with the exiting game laws like online poker.
Online Gaming/Gambling laws in India prohibit betting or wagering and any act which is intended to aid or facilitate the same. Gaming/Gambling being a State subject, gaming/gambling in India have laws which differ from state to state . This would mean what is permitted in one State may be an offence in another. The Public Gambling Act, 1867, is the central enactment on the subject, which has been adopted by certain states of India like Uttar Pradesh, Punjab, Madhya Pradesh etc. The other States have enacted their own legislation to regulate gaming / gambling in India activities within its territory. It is to be noted that State Legislations have been enacted prior to the advent of virtual / online gambling in India and therefore references of gaming/gambling in India, in respective state legislatures are in relation to physical premises only, barring Sikkim and Nagaland which are the only States who have introduced regulations pertaining the online gaming.
After going through the State gambling laws for online gambling in India, it is found that, except the State of Orissa and Assam, most of the States have excluded ‘games of skill’ from applicability of its respective gaming/gambling laws. Further, playing certain games including ‘Poker’, both online and offline, is permitted under the laws of West Bengal, Nagaland and Sikkim subject to licence from the appropriate State Authorities. But this would be applicable only in the territorial limits of the respective State. In Goa, gambling is permitted only in Government permitted places operated as casinos.
The issue of online gambling in India laws in India still remains a grey area which is yet to be adjudicated by Courts of India. Having said that, necessary inferences can be drawn from orders passed by the Court while deciding the issue of whether a particular game is a ‘game of skill’ or a ‘game of chance’. But the issue of whether a ‘game of chance’, if played like a sport without stakes amount to gambling or not? still remains largely undecided.
Game of Skill v. Game of Chance:
There has been a substantial discussion by Supreme Court and High Court on what constitutes a ‘game of skill’ and a ‘game of chance’. What is adduced from the judgments is that a game where there is preponderance of skill over chance is a ‘game of skill’ and vice-versa.
By taking the above ratio into account, SC in the matter of State of AP v. K.Satyanarayana(1968) held the game of Rummy to be a ‘game of skill’. However, the Court in its judgment has indicated that if there is gambling or if the gambling house is making profit from the game of rummy, then it could amount to an offense under the laws of AP. It was further observed by SC that the three card game which goes under different names such as flush, brag, etc. is a game of pure chance. This was relied upon by SC in another its other judgments viz. M.J.Sivani v. State of Karnataka (1995) and Dr. K.R. Lakshmanan vs State Of Tamil Nadu And Anr (1996).
The issue of whether rummy if played with stakes amounts to gambling or not has not been decided by Supreme Court. However, Andra Pradesh High Court in D. Krishna Kumar And Anr. vs State Of A.P.(2002) (Annexure-2) relying upon the SC decision of 1968 held that till such time the state gambling Act is amended to lay down that playing Rummy with stakes is 'gaming', playing Rummy with stakes is not 'gaming' within the meaning of the Act and is therefore allowed.
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The issue of Online Gaming/gambling laws in India was discussed in detailed in the above case when the issue was put up before the Court under Order 36 Rule(1) of CPC by the parties. The Court held the following:
- Game of skills, if played with stakes does not amount to gambling;
- Playing games of skill for money is only legal in the real form, online games cannot be compared to real games;
- Attracting business or enticing players by alluring them with prize money is illegal;
- Gaming sites partaking a slice on the winning hand are illegal as they amount to a virtual gambling house.
Having said that, the said ruling was rendered infructuous as during the final arguments in the Revision petition, parties sought to withdraw the petition. So the effect being there is no ruling which can be treated as a precedent as regards online gambling.
Gujarat High Court on Poker:
The issue whether Poker is a ‘game of skill’ or a ‘game of chance’ was never discussed in detail by any Court in India until the recent decision/order dated December 4, 2017 passed by Gujrat High Court in Dominance Games Pvt. Ltd. V. State of Gujarat, wherein, the said issue was extensively pondered upon. The Court in its said decision held that Poker is a ‘game of chance’ and therefore amounts to gambling under Gujarat Prevention of Gambling Act, 1887. While arriving at the aforesaid decision, the Court inter alia observed the following:
- That the game of poker originated from ‘flush’ or ‘Indian teenpatti’ which has been observed by SC as a game of chance in its 1968 judgment and consequently, as a corollary, the game of poker is also to be construed as a game of chance;
- The game of poker involves a process wherein the players have no control or say on the cards received by them and the final outcome is based on mere luck or chance depending upon how the cards are received by the player. Poker face to bet, would be a part of bluffing or deception and the so-called strategy, cannot be considered as a skill. The outcome also depends on the ability of a player to spend money and how deep are his pockets. It is a game of deceiving, bluffing and duping other players;
- The game of Rummy is different than Poker. While poker involves betting or wagering, rummy has nothing to do with stakes and betting or wagering is not essential to the game of rummy;
- The Court while noting the ills of gambling and impact of gambling on the moral fibre of society noted that ‘one must not overlook the ground realities in India or the country like India, where the majority of the population is struggling for the basic necessity and there is lack of awareness amongst the people and if they are permitted by betting in the craze of easy money, they do not know what to do if the things go wrong.’
Mr. K.N Suresh, Secretary of Indian Poker Association has filed an appeal against the said order, being Letters Patent Appeal No. 2625 of 2017 before the Division Bench of Gujarat High Court. The bench after hearing the matter briefly on December 28, 2017 issued notice to the state government and other respondents, and till date the matter is not heard finally. Having said that, since no ad-interim/interim reliefs are granted presently, the Single Judge order stands valid and enforceable.
Though the order does not specifically make any observation on Poker, if played as a sport and/or without stakes, however, while differentiating between rummy and poker, the Hon’ble Court at para 60 of the said order makes a presumption that wagering or betting is an inseparable part of the game of poker and therefore would involve stake. The Court while holding Poker to be a ‘game of chance’ has also predominantly relied upon moral religious and social grounds. In the absence of the said order being overruled and the issue being addressed specifically, the game of poker, even if played as a sport and/or without stakes remains a grey area which is then left at the discretion of police authorities.
POSITION:
Though the issue of Poker was considered by Gujarat High Court in view of the provisions of Gujarat Prevention of Gambling Act, 1887, in arriving at the decision of Poker being a ‘game of chance’, the court made several observations like how the game is played, origin of the game, reference to ancient Indian literature, moral and religious grounds, etc. which may be applied by other states/state machinery having similar gambling laws. The issue is likely to be clarified by Division Bench of Gujarat High Court, once the appeal is finally heard.
In view of the above, it is clear that if a game is considered to be a ‘game of chance’ under the state laws and rulings by the Courts and is played with stakes, would constitute gambling under the respective state laws with exception pertaining to a few states as mentioned above. If an entity is able to show that a particular online game or a particular on-ground gaming activity has preponderance of skill over chance and/or is played as a sport without stakes, it may fall within the exception of gaming/gambling under the state gambling laws. It is pertinent to note however that if online gaming is illegal in any State, the promotion of the same in such State would amount to violation of ASCI Code as well as Cable TV Network Regulation Act, 1994.
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Ahmedabad, Oct 13 (PTI) The Gujarat High Court hasdirected the state government to look into the issue of onlinegambling, and take action in accordance with the law in largerpublic interest before it is too late.
The court said the existing Gujarat Prevention ofGambling Act-1887 remains completely silent on the issue, moreparticularly online rummy, even as the Internet gamblingpresents 'many of the same concerns that the traditionalgambling activities have raised throughout the years'.
A division bench of Chief Justice Vikram Nath andJustice J B Pardiwala in its September 29 order, which wasmade available on Tuesday, pointed out that the amendeddefinition of 'common gaming house', as per the TelanganaGaming Act, 1974, indicates that gaming includes online gamingfor money or any other stakes.
The HC also said that while the Supreme Court has heldrummy as a game of skill, 'the moot question is whether whatis being played is rummy in its true sense or it is just pureand simple gambling'.
The bench directed the Gujarat government to deal withthe issue of online gaming which involves gambling, as gamingis a subject matter of the state government according to ListII of Schedule VII of the Constitution of India.
'If any website is operating from the state of Gujarator is engaged in any gambling games, the state shall deal withthe same in accordance with law, rules, regulations and thepolicy as may be applicable,' it said.
The state shall also examine whether such games resultin money-laundering or violation of laws related to foreignexchange as well, it said.
'We expect the state government to promptly look intothe aforesaid issues and take an appropriate decision inaccordance with law in larger public interest before it is toolate,' the court said.
The order came on a PIL filed by advocate Amit Nair,who sought the court's direction to declare online gambling invirtual space/world wide web/cyber space, through mobileapplications as well as through computers, more particularlyonline rummy, as bad and illegal.
The court said, 'Internet gambling presentsessentially many of the same concerns that the traditionalgambling activities have raised throughout the years:uneasiness about the morality of the activity; the likelihoodof addiction; the possibility of fraud; and the conflictbetween the state versus central regulations.'
'The questions of morality primarily surface inconnection with the Internet gambling's accessibility tochildren, because children have potentially unlimited accessto the computers and the Internet,' it observed.
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It is possible that without proper monitoring, theymay access the gambling websites 'as readily as they couldaccess indecent materials,' the HC said.
'The supporters of a ban of Internet gambling maintainthat outlawing the activity for all individuals is the onlyway to ensure that a segment of the population, children, willbe adequately protected from corruption,' it said.
Observing that the applicant has pointed out'something very important in public interest,' the high courtcalled upon the government to do the needful.
The court observed that the Gambling Act, 1887 remains'completely silent' on the aspect of online gambling, moreparticularly online rummy.
This means an individual would get arrested only if heis caught playing rummy/cards outside/in a gambling den inGujarat, as per the definition of the term 'common gaminghouse' under section 4 of the Act, whereas an individualplaying online rummy cannot be arrested or booked for theoffence of gambling, it said.
The petitioner submitted that online gamblingwebsites/mobile apps are mushrooming at an alarming level.
He also said several online gambling apps are promotedin Gujarat as well, with estimates putting online rummy as aRs 2,200-crore industry in India, accounting for half of thecountry's online gaming business.
Even when such gambling platforms engage in illegalactivities, the same remains unchecked/uncontrolled 'due tocertain deficiencies in the Gujarat Prevention of GamblingAct, 1887,' Nair's lawyer Bhargav Hasurkar submitted.
He said the present legal framework in reference togambling should be regulated to include the virtual oronline/cyber space aspects. PTI KA PDGK GK
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