India Gambling Online Law
This limbo state makes it legal to bet on online platforms. Indian gambling law is subject to different interpretations, which makes it even confusing. But basically, there are no laws against online gambling in India. Confusion arises due to one of the following factors. Weak Law Enforcement. The issue lies in law enforcement. In India, the online gaming law is at a very nascent stage and is being administered by the available, if any, local laws. The online gaming involving stakes is neither per se prohibited in India. There are 3 main laws to discuss regarding online gambling in India—the Public Gambling Act of 1867, Prize Competition Act (1955) and the Information Technology Act of 2000. Between these 3 laws, there is no specific mention of online gambling.
At present gambling in India is regulated amongst others, by the Public Gambling Act ('Gambling Act') constituted in the year 1867, which extends to the United Provinces, East Punjab, Delhi and the Central Provinces and specifically prohibits public gambling and running or being in charge of a common gaming house.
In addition to the aforesaid, the state legislators are, vide Entry No. 34 of List II (State List) of the Seventh Schedule of the Constitution of India, 1950 ('Constitution'), given exclusive power to make laws relating to betting and gambling. The applicability of the Gambling Act, for the purpose of any particular state stands repealed by virtue of the specific state enactment so promulgated in respect of the subject matter of betting and gambling, by virtue of the aforementioned provisions of the Constitution.
As a consequence of the aforementioned state legislations, any individual/entity intending to engage in any gaming activities, with or without stakes would have to comply with the provisions of the enactment/ legislation in force across India in various states.
At present the state legislature of Delhi has enacted the Delhi Public Gambling Act, 1955 ('Delhi Gambling Act') which prohibits gaming in the union territory of Delhi, but excludes from its purview the 'games of mere skill' wherever played1. By virtue of the provisions of the Delhi Gambling Act, the applicability of the Gambling Act to the union territory of Delhi stands repealed2.
GAME OF SKILL V. GAME OF CHANCE
Similarly, as in the State of Delhi, the State of Goa has made special enactments for the purpose of allowing gambling. The only State to allow on-line Gaming is the State of Sikkim. However, there are certain restrictions. In India, the enactments essentially allow such Games to be played on line, which are games of skill.
Various courts in India have examined the difference between the game of skill and game of chance and in order to determine what constitutes gaming as defined in various state enactments (i.e. gambling); it is imperative to understand the difference between a 'game of skill' and a 'game of chance'. For this purpose, it will be interesting to examine the following Indian judicial pronouncements:
In State of Bombay v. R. M. D. Chamarbaugwalal3, the Supreme Court of India ('Apex Court') held that competitions (games) where success depends on a substantial degree of skill will not fall into category of 'gambling' (i.e. gaming as defined under state enactments); and despite there being an element of chance, if a game is predominantly a game of skill, it would nevertheless be a game of 'mere skill'.
In State of Andhra Pradesh v. K. Satyanarayana & Ors4, the Apex Court while holding that the card game – 'Rummy' is not a gambling activity stated that 'Rummy requires certain amount of skill because the fall of the cards has to be memorised and the building up of Rummy requires considerable skill in holding and discarding cards. We cannot, therefore, say that the game of Rummy is a game of entire chance. It is mainly and preponderantly a game of skill.'
In M.J. Sivani & Ors. v. State of Karnataka5, the Apex Court observed, 'Even a skilled player in a game of mere skill may be lucky or unlucky, so that even in a game of mere skill chance must play its part. But it is not necessary to decide in terms of mathematical precision the relative proportion of chance or skill when deciding whether a game is a game of mere skill.When in a game the element of chance strongly preponderates, it cannot be game of mere skill.Therefore, it is not practicable to decide whether particular video game is a game of skill or of mixed skill and chance. It depends upon the facts, in each case.'
The Apex Court again delved into the aspect pertaining to what constitutes a game of skill in Dr. K.R. Lakshmanan v. State of Tamil Nadu6, where it stated 'Games may be of chance, or of skill or of skill and chance combined. A game of chance is determined entirely or in part by lot or mere luck. The throw of the dice, the turning of the wheel, the shuffling of the cards, are all modes of chance. In these games the result is wholly uncertain and doubtful. No human mind knows or can know what it will be until the dice is thrown, the wheel stops its revolution or the dealer has dealt with the cards.A game of skill, on the other hand - although the element of chance necessarily cannot be entirely eliminated - is one in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player. Golf, chess and even Rummy are considered to be games of skill. The courts have reasoned that there are few games, if any, which consist purely of chance or skill, and as such a game of chance is one in which the element of chance predominates over the element of skill, and a game of skill is one in which the element of skill predominates over the element of chance. It is the dominant element - 'skill' or 'chance' - which determines the character of the game.'
From the aforesaid, judgments, it can be concluded, that what is allowed in India is only a game of skill and for a game to be considered as a game of skill, the mechanics (nature of the game, mode of playing, rules etc.) of the game should clearly reflect that the requirement of skill preponderates the element of chance and wherein success depends principally upon superior knowledge, training, attention, experience and adroitness of the player. In addition to which, it can be concluded that 'games of skill' do not come within the purview of a majority of state gambling enactments, thereby meaning, that playing games of skill for stakes in the physical form, would not be treated as an act of gaming (as defined in such enactments).
ONLINE GAMING
Sikkim is so far the only state in India which has enacted a statute pertaining to online gaming i.e. Sikkim Online Gaming (Regulation) Act, 2008 ('Sikkim Gaming Act'). In terms of the Sikkim Gaming Act, an interested person can obtain a 'license' for the purpose of conducting online games such as Roulette, Black-jack, Pontoon, Puntobanco, Bingo, Casino Brag, Poker, Poker dice, Baccarat, Chemin-de-for, Backgammon, Keno and Super Pan 9.
- As concluded above, games of skill played for stakes in the physical form, do not come within the ambit of gaming (as defined in various state enactments); however to ascertain whether the same status is accorded to games of skill played online, it has to be seen whether there is a distinction between a game of skill and a game of chance. The expression 'skill' has been defined by the Courts as an exercise upon known rules and fixed probabilities of sagacity, which involves five parameters:
- learned or a developed ability,
- strategy,
- physical co-ordination,
- technical expertise, and
- knowledge.
Games like Rummy, Chess, Bridge, Billiards and Golf have been recognised by the courts in India as games of skill.
- The courts have held that Poker cannot be accepted as a game of skill; however it was stated that it would be legal to play poker within the states which do not hold it as illegal.
- The Courts have also opined that that the degree of skill required in games played in a physical form cannot be equated with those played online, as the degree of chance increases in case of online games and the degree of skill used in playing these games online is questionable. Hence, online games, even those requiring a high degree of skill, conducted by gaming sites offering prize money and partaking a slice of the winning hand are illegal in states which prohibit gambling.
- Courts in India have also stated that such online gaming portals are essentially a substitute for traditional casinos since websites operate as common gaming houses7 where members interact and place bets. Thus the company and its directors, agents, players are liable to penal consequences.
- It has been also held that conducting online games for profit cannot be included in the scope of trade, business or commerce as envisaged under Article 19 (1) (g)8 of the Constitution. Further, sports' betting is an offence in India and individuals earning money from bets laid on games of skill do not have the constitutional protection of Article 19(1) (g).
In view of the aforesaid, it is clear that only Games of skill and that too played in physical form have been held by the courts to be valid and falling within the ambit of various enactments, dealing with Gaming, in India. However, as far as, on-line Gaming is concerned, the courts are of the view that on-line Gaming could not be compared to real game being played and would, therefore, not be allowed until 'skill' test is passed by it.
Footnotes
1 Section 13 of the Delhi Public Gambling Act, 1955
2 Section 18 of the Delhi Public Gambling Act, 1955
3 AIR 1957 SC 699
4 AIR 1968 SC 825
5 1995 6 SCC 289
6 AIR 1996 SC 1153
7 The court placed reliance on the definition of 'gaming house' in the Bombay Gambling Act as 'any house, room or place whatsoever, in which any instrument of gaming is kept or used for profit or gain of the person owning, occupying using such house, room or place by way of charge for the use of such house, room or place or otherwise howsoever.'
8 Article 19(1)(g) of the Constitution provides to every Indian citizen the right of freedom to carry on any occupation, trade or business, subject to reasonable restrictions.
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Regulation, rather than a ban, could bring with it several benefits as seen in other countries
A few weeks ago, Google pulled Paytm from the Play Store for violating its gambling policies. The growing popularity of gaming platforms like Dream11 and Paytm First Games raise questions about whether they are proxies for online gambling as they can involve financial transactions but are currently classified as ‘games of skill’. In a conversation moderated by Jayant Sriram, Jay Sayta (has extensively tracked issues pertaining to the gaming industry and gaming laws over the last decade and now advises several gaming companies on policy, regulatory, tax and legal issues) and Vidushpat Singhania (Managing Partner of Krida Legal and specialises in sports and gaming laws) discuss the current legal position in India on games of skill versus games of chance, the size of the gambling industry, and issues of regulation. Edited excerpts:
Jay Sayta:As you said, games of skill are exempt from the ambit of gambling. Gambling and betting are a State subject. Every State has its own legislation on gambling, and most States have an exemption for games of skill. However, these statutes are pretty old, and they do not clearly define or enumerate which games fall within this skill category. Nagaland, for instance, has a separate legislation which details what are games of skill. But for the most part, most States do not have that kind of clarity. So, it falls within the judiciary’s ambit to interpret whether a particular game falls within the ambit of skill or not.
Now, with regards to Dream11 and daily fantasy sports, the matter has gone to multiple High Courts starting from 2017. In 2017, the Punjab and Haryana High Court ruled that the format of Dream11, which involves picking 11 players from a real-life match from both sides and allocating points based on their real-life performance, is a game of skill and does not fall within the definition of gambling. Following that, in 2019, the Bombay High Court also passed a similar ruling. The Rajasthan High Court gave a similar ruling earlier this year. However, on March 6 this year, the Supreme Court, while hearing the appeals from the Maharashtra government against the Bombay High Court’s order on Dream11, issued notice to all parties and stayed the operation of the Bombay order, which means that they will go into the merits of the matter in detail and adjudicate finally on whether it is a game of skill or not.
Vidushpat Singhania: The State Acts largely don’t define what is a game of skill. What you go by is the interpretation given by the Supreme Court in various judgments starting from Satyanarayana (pertaining to the card game Rummy), where it said skill predominates over chance. It’s still open to interpretation for a range of other games. The Rajasthan High Court, Punjab and Haryana High Court, and then the Bombay High Court all held that in the format being offered currently, Dream11 is a game of skill. There have been several appeals filed and dismissed against these judgments. But earlier this year, in another petition that is pending, the Supreme Court looked at it and stayed the order of the Bombay High Court and is looking to hear the matter afresh. What this means is, if the Supreme Court says that daily fantasy sports are games of chance, then the entire industry shuts down and the issue goes back to the States in a sense. State governments can issue licences for these games. If the Supreme Court says it is a game of skill, then the industry is open all over India.
Vidushpat Singhania: It’s a very tricky question because the gaming industry has legal as well as illegal components. And not everything is about paid gaming; there is also a lot of free gaming, casual gaming, gaming just for entertainment. Some parts of it are regulated. Betting on horse racing is regulated, casinos in Sikkim and Goa are regulated, certain games of skill are also regulated in States like Nagaland. According to companies like KPMG, the gaming industry in India would be worth about $150 billion.
Jay Sayta: Within that, the category of skill-based games is a complicated one because while these games can involve monetary transactions, they are largely offered for free. These skill-based games themselves could cross a billion dollars in value, the KPMG report states, and are growing at around 30% annually. Now that’s the skill part, but if you’re looking generically at gaming, both skill or chance, it is a very high number. Largely it is unregulated and in the grey space.
Jay Sayta: Just taking a step back from how to go about regulation or legalisation, the question we need to ask is whether this is desirable or not; whether a ban or more stringent laws are the answer; or whether we need to take a more nuanced perspective and recognise that even if we pass new laws, this would still continue in some manner or shape.
Online Gambling Laws In India
In my view, regulation, rather than a ban, has certain benefits. One is the revenue argument. Since it’s happening largely underground, it’s a huge source of black money. So, if it is legalised and taxed in a realistic and reasonable manner, it can be a huge source of revenue for the government. The second is with regard to sports betting where there are a lot of allegations of match-fixing. Now, regulated and licensed betting regimes, as in the U.K. and many European countries, have a strong mechanism to monitor each of the betting websites, track suspicious patterns if there is a sudden spike in betting for certain events, and investigate them. And there are, of course, other ancillary benefits like employment.
Vidushpat Singhania:By way of a legal framework, we have regulations in Goa and Sikkim, where there is a licensing regime to allow certain types of casino games. So, you could expand that kind of legislation itself. Or you could look at international examples like the U.K. which has the Gambling Act of 2005. The Act has four or five categories, and they regulate it based on those categories. So, they have casual gaming, mid-level gaming, serious gaming, high-stake gaming. They’ve divided the games into four or five categories, and then based on that, they have a licensing regime. This applies across all games, whether skill or chance. That is the closest we could also go, where we divide various games into various categories and have a different licensing fee for each. Now, whether that can be pan-India or State by State is the issue.
Vidushpat Singhania: Games of skill are largely self-regulated. There are bodies such as the All India Gaming Federation, FIFS [Federation of Indian Fantasy Sports] and The Rummy Federation which have developed self-regulation codes for advertisements, the way of playing, taxation… The only State where gaming or skill gaming has been regulated is Nagaland. Otherwise, games of skill are generally self-regulated by these industry bodies, which is not bad. I don’t think we need the government to step in to regulate everything. Maybe a basic level of licensing regime can come in, but the operational regulation, I think, should always be with the industry.
Jay Sayta: I have a bit of a different opinion because self-regulation, be it in gaming or in broadcasting or anywhere else, has always been less than satisfactory. There are no sanctions or penal measures that can be invoked against any erring operators. While it is great that these guidelines or charters are there, there are various operators out there who don’t follow them and there is nothing that can be done against them apart from naming and shaming them. A lot of people must have also seen advertisements about skill gaming companies. Some of them are misleading and give false assurances.
The Consumer Protection Ministry has issued certain guidelines on advertising. Perhaps these real money games can be included in that ambit and certain dos and don’ts [can be specified]. For example, I don’t think it is appropriate to give the message that during the lockdown, you can play day and night on these platforms and use them as instruments to solve your social or financial problems. So, the government should step in.
Indian Online Gambling Laws
Vidushpat Singhania: This is an issue that the Law Commission of India has also gone into. It has said we will have to demarcate serious gaming and casual gaming limits. If somebody is putting up ₹100 or ₹200 a day, you can allow it as a kind of social gaming, because the prizes will also be limited in that sense and you don’t really need a licence. But where the monies are bigger, say you are allowed to put ₹5,000 and you can win up to a crore, that goes into the serious gaming or gambling aspect and that will definitely need complete regulation.
Vidushpat Singhania: GST [Goods and Services Tax] and income tax are still applicable to these games. It’s only a licensing fee which may not be applicable at this point of time. Dream11, for instance, is paying GST, and the winners will end up paying income tax as well. So, if it is regulated as a game of skill, and the court allows it, then there will be an exponential growth in this game and the collection of GST will increase.
Jay Sayta: The activity is already being taxed. The only aspect is the category of tax. Right now, the argument is that it has legal basis as a game of skill and so it does not fall within the sin category of, say, gambling and casinos. So they are paying a lower amount of tax. That is one aspect which needs to be thought through — whether there needs to be a slightly higher rate of tax for these kinds of activities.
Online Gambling Laws In India
The revenue potential has also been weighed in. If taxed in a rational and reasonable manner, games of skill or chance could lead to tens of thousands of crores in revenue. For instance, the Maharashtra government is already looking at the aspect of regulating sports betting, as per reports.
Vidushpat Singhania is the Managing Partner of Krida Legal and specialises in sports and gaming laws; Jay Sayta has extensively tracked issues pertaining to the gaming industry and gaming laws over the last decade and now advises several gaming companies on policy, regulatory, tax and legal issues.
Written By: Jayant Sriram
India Gambling Online Laws
Article Found on: The Hindu
Article link:https://www.thehindu.com/opinion/op-ed/should-online-gambling-in-india-be-regulated/article32746687.ece