Gambling goes back through the ages and the hypocrisies that have courted the human indulgence are just as old. While some judicial verdicts are a step in the right direction, it is time to call for a re-assessment and overhaul of legislation that governs the subject.
Online gaming is here to stay. The rapid growth in digital infrastructure, communication technology and the internet have signaled a boom in the online gaming industry.1 Yet, like the other '(s)industries', say alcohol, the legislation governing gambling is shrouded in utter hypocrisy.
The earliest laws on the subject sought to enforce a sense of subjective morality. Take the Rig Veda written around 1500 B.C., which draws the unmistakable link between gambling and the actual vice of theft.2 There is patriarchal prejudice too – the loneliness of the wife and worries of the mother are attributed to gambling addictions of the man. The Mohammedan law on the subject is quite similar. It treats gambling as evil and sinful.3
The British of the Victorian era shared these sentiments. The Council of the Governor General of India introduced a Bill, that was to become the Public Gambling Act, 1867,4 a law that serves as the blueprint for other anti-gambling laws in various States. The Act introduced a distinction between games of 'skill' as against those of 'chance'. The latter was treated as tantamount to gambling and provision was made to punish those indulging in such games while establishments that facilitated these were outlawed.
The hypocrisy behind this legislation is out done only by an obviously rich colonial attitude. A reading of the debates that took place in the Council of the Governor General at the time reveal that at least part of the object was to ensure that natives in the direct employ of colonial households did not while away their time indulging in play rather than serving their masters.5
As originally drafted, the provisions of the Bill were confined to towns containing not less than five thousand inhabitants, such as the Presidency of Fort William, the Panjab, Oudh, the Central Provinces, and British Burmah. These were large urban centres, with a considerable British presence. However, this would have had an unintended consequence, i.e., "a large proportion of the population" that "consisted of domestic servants" in the hill-getaways of "Nynee Tal, Muree, and Dalhousie" would have been left unregulated. For obvious reasons, it was felt desirable that "gaming-houses should, if possible, be suppressed" in such areas as well.6
Of course, it was ensured that elitist pleasures continued unobstructed by introduction of separate legislation legalizing horse-racing. By contrast, fervent appeals by the common folk, demanding that cock-fighting be placed on a pedestal similar to horse-racing were declined.7
Interestingly, the Select Committee that had considered the Bill had harboured the conception that those indulging in gambling were prone to commit crimes such as "theft and even murder". Yet, wisdom was available in 1867 too, though in short measure. One of the legislators, JEL Brandreth had doubted the efficacy of the draft law on the ground that habitual offenders were, at any rate, more likely to gamble in secret and then to be driven to crime in order to repair their losses. In a sense, Brandreth's suggestion being that the law would not achieve the objective of controlling such crimes, if at all.
Fast forward to present times—the Constitution of India recognises the right to 'practice any profession, occupation, trade or business' under Article 19(1)(g). A permissible pleasure such as online games should, therefore, be deemed to be protected. Of course, the right can only be subject to reasonable restrictions under Article 19(6). However, various States within the Union have enacted laws seeking to outlaw gaming or imposing unreasonable restrictions on the pretext that online games amount to gambling. Such legislations are ostensibly framed under Entry 1 (Public order), Entry 34 (Betting and gambling) or Entry 62 (Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling) of List II of the Seventh Schedule. Executive action under these laws has many a time sought to outrightly prohibit online games on the pretext that such gaming activities are tantamount to gambling and are 'res extra commercium' (i.e., a thing outside commerce) and therefore, are not subject to protection under Article 19(1)(g).
Ultimately, it is left to the courts to apply the binary test of 'skill' v. 'chance' i.e., to determine whether a game is predominantly one of 'skill' so as to be worthy of some protection under the Constitution. But, taking from pre-constitution times, be it breeding roosters for aggression or horses for speed—the thing with 'skill' is that much like 'beauty'—it lies in the eyes of the beholder! At a rather rudimentary level, that is the problem with the 'skill' v. 'chance' test.
There are instances, where our constitutional courts, which are tasked with protecting our liberties have continued to make references to theological verses in order to justify prohibitions on online games and lotteries such as those in the Rig Veda.8 Nonetheless, the pronouncements of the High Courts of Punjab & Haryana9, Bombay10, and Rajasthan11 holding that an online fantasy gaming platform is a game of skill; and that of the Madras High Court (3rd of August, 2021) in Junglee Games India Pvt. Ltd. v. State of Tamil Nadu (2021) SCC Online Mad 2762, that declared a February, 2021 amendment to the Tamil Nadu Gaming Act, 1930 prohibiting betting and wagering on all forms of online gaming as ultra vires the Constitution—are all welcome steps in the right direction.
Nevertheless, the artificial basis for the classification between games of 'skill' and those of 'chance' continues to remain intact. This is coupled with the fact that a majority of governments in the States continue to be disinclined to legalize gambling; yet interestingly, many run their own lotteries12 as if, 'sin' is justified once hosted by the State. Also, where gambling is legal, those in government have on occasion—flirted with the idea of banning 'locals' from such pleasures.13
It is time already to be open to the digital reality of the present age and to revisit the whole 'skill v. chance' test altogether. The point is, modern legislations as opposed to theological laws and religious scripts, should treat us as informed adults. After all, within the bounds of good taste—any legislation should respect the sentiment that an adult individual is supreme over her own body and mind.
Footnotes
2. https://indiankanoon.org/doc/212098/
3. https://www.learnreligions.com/what-does-the-quran-say-about-gambling-2004114
4. https://www.indiacode.nic.in/bitstream/123456789/2269/1/AAA1867____03.pdf
5. Abstract of Proceedings of the Council of the Governor-General of India, Vol. 6 dated 25th January 1867
6. Ibid
7. Ibid
9. See: Varun Gumber v. Union Territory of Chandigarh & Ors. 2017 SCC Online P&H 5372. Also, see: Supreme Court of India, Record of Proceedings in Diary No. 27511/2017 whereby an appeal against the decision of the P&H High Court was dismissed by the Hon'ble Supreme Court of India.
10. See: Gurdeep Singh Sachar v. Union of India CRLPIL No. 22/2019 passed by the High Court of Judicature at Bombay. Also, see: Supreme Court of India, Record of Proceedings in Diary No. 43346/2019 whereby an appeal against the decision of the Bombay High Court was dismissed by the Hon'ble Supreme Court of India.
11. See: Judgment and Order dated 14.02.2020 in Chandresh Sankhla v. State of Rajasthan & Ors. D.B. Civil Writ Petition No. 6653/2019 Also, see: Supreme Court of India, Record of Proceedings in Diary No. 18478/2020 whereby an appeal against the decision of the Rajasthan High Court was dismissed by the Hon'ble Supreme Court of India.
12. https://www.indiatoday.in/india/story/lottery-mizoram-nagaland-sikkim-kerala-975188-2017-05-04
13. https://scroll.in/latest/834695/manohar-parrikar-government-plans-to-ban-goans-from-state-casinos
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