There is a law in India that says it is illegal to fund online gambling sites without using Rupees. This law is called the Foreign Exchange Management Act. If you are to place a bet at an online bookmaker or gaming site you need to do so in Rupees. 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’. However, online gamblingin India has started to take baby steps when it comes to the legal scenario. At the state level, rules are being framed regarding online gambling. So far, only Sikkim and Nagaland have come up with laws favoring online gambling. Maharashtra, on the other hand, does not allow online gambling.

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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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:

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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.

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.

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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.

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.

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.

Online Gambling Is Legal In India Or Not

Written By: Jayant Sriram

Article Found on: The Hindu

Is Online Gambling Legal In India

Article link:https://www.thehindu.com/opinion/op-ed/should-online-gambling-in-india-be-regulated/article32746687.ece