Comparative Analysis of Gambling Act or Laws of Gambling in India
Laws of Gambling in India or The Gambling Act, 1887, applies to the States of Maharashtra and by virtue of the Bombay Reorganization Act, 1960, to Gujarat as well. While prohibiting and penalizing ‘betting or wagering’, the Act, under section 3, exempts from its ambit “wagering or betting upon a horse-race or dog race” and under section 13, “games of mere skill wherever played”.
Gambling and Betting- a Game of Chance or Skill
- The main test to determine whether a game amounts to gambling or not is, what dominates/preponderates, whether skill or chance. Games of chance are those where the winner is predominantly determined by luck; the result of the game is entirely uncertain and a person is unable to influence such result by his mental or physical skill. The person indulging in game of chance wins or loses by sheer luck and skill has no role to play. On the other hand, the result of a game of skill is influenced by the expertise, knowledge and training of the player. In India, games of chance fall under the category of gambling, and are generally prohibited, while games of skill, falling outside the ambit of gambling are usually exempted.
- In RMD Chamarbaugawala v. Union of India, the Apex court relied on the ‘skill test’ to decide whether an activity is gambling or not. The court held that competitions which substantially involve skills are not gambling activities but are commercial activities, protected under Art. 19(1)(g).
- State of Andhra Pradesh v. K. Satyanarayana & Ors., held that, rummy is preponderantly a game of skill and not of chance. The Court further observed that, “it 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”. The expression ‘mere skill’ means presence of skill of a substantial degree.
- The Public Gambling Act ceased to be a Central Legislation, such that it was no longer a law applicable to the whole of the territory of India.
- The following 14 States/Union Territories have passed enactments adopting the Public Gambling Act, 1867 as it is, namely:
- Andaman Nicobar
- Arunachal Pradesh
- Dadra and Nagar Haveli
- Himachal Pradesh
- Madhya Pradesh
- Other States like Andhra Pradesh , Delhi , Gujarat and Maharashtra, Jammu & Kashmir,Meghalaya and Goa among many others have resorted to enacting their own gambling legislations.
Meghalaya The Meghalaya Prevention of Gambling Act, 1970
- The Act, 1970 not only permits “games of mere skill wherever played”, but also those games and sports that it may by notification, exempt from the operation of this Act, provided it is not likely to encourage gambling or otherwise defeat the objects thereof.
- The government of Meghalaya has used the power available under Section 13(2) to permit the local archery game of ‘teer’.
- Betting on it is licensed under Section 14A of the Meghalaya Amusement and Betting Tax (Amendment) Act 1982.
Rajasthan The Rajasthan Public Gaming Ordinance, 1949
- The Ordinance, 1949 provides that nothing therein shall be held to apply to any game of mere skill, as distinguished from a game of chance and skill combined, unless it is carried on in common gaming house. Thus, the Rajasthan Ordinance prohibits even games of skill, only if played in a common gaming house.
Goa, Daman and Diu The Goa, Daman and Diu Public Gambling Act, 1976
- The Act, 1976 aims to “provide for the punishment for public gambling and the keeping of common gaming houses in the Union territory of Goa, Daman and Diu”. However, it is one of the only two State Legislations in operation that permits casinos and other games of chance.
- The Goa Legislative Assembly by amending the Act in 1992110 and 1996111 added Section 13A, which allows the State Government to authorise games of “electronic amusement/slot machines in Five Star Hotels” and “such table games and gaming on board in vessels offshore as may be notified”.
- The 2012 Amendment112, further widened the ambit and regulatory system by amending some of the provisions and also inserting a new range of provisions. The prominent among the new provisions so added are:
- Section 13C, enabling the State government to appoint a Gaming Commissioner;
- Section 13D, provides for powers, duties and functions of the Gambling Commissioner; and,
- Section 13L, excludes the jurisdiction of Civil Courts with respect to entertaining any matter arising out of any order, direction, rule issued or framed under the Act.
- Games of Chance The Sikkim Casinos (Control & Tax) Act, 2002
The Act, 2002 authorizes the Government of Sikkim to grant licences to businesses and individuals to operate casinos in the State. The Sikkim Regulation of Gambling (Amendment) Act, 2005, grants discretion upon the government to grant licences, authorizing gambling on certain days and making certain gambling houses legal. The Sikkim Casino Games (Control and Tax) Rules, 2007 are made under Section 18 of the Act. The Act and the Rules framed thereunder regulate games of chance played using a machine or instrument in fivestar hotels. In July 2016, the Government of Sikkim, vide a notification, banned its local population from playing in casinos situated in the State
- Online Gaming The Sikkim Online Gaming (Regulation) Act, 2008
The Act, 2008 is the first Indian legislation to expressly permit and regulate online gaming. The Sikkim Online Gaming (Regulation) Rules, 2009 are framed under section 23 of the 2008 Act. Rule 3 of these Rules, read with the Sikkim Online Gaming (Regulation) Amendment Act, 2009, provides that the following games may be operated and played under a licence obtained from the State Government:
- Black Jack
- Punto Banco
- Casino Brag
- Poker Dice
- Super Pan 9
- sports betting on games, which involve prediction of the results of the sporting events and placing a bet on the outcome, either in part or in whole, of such sporting event, and including football, cricket, lawn tennis, chess, gold, horse-racing, etc. 5.58 The Government of Sikkim, however, restricted the offering of “online games and sports games” to the physical premises of ‘gaming parlours’ through intranet gaming terminals within the geographical boundaries of the State, by enacting the Sikkim Online Gaming (Regulation) Amendment Act, 2015.
- Other States like Kerala, Jammu & Kashmir, Bihar, Jharkhand, etc., have enacted their own laws on ‘Betting and Gambling’, following, in a way, the model of the Public Gambling Act, 1867, and prohibiting gambling and keeping of common gaming houses, while making an exception for ‘games of skill’
Kerala High Court Directions to Goverment
- The kerala High Court has directed the Kerala Government to take an appropriate decision on the aspect of inclusion of online gambling and online betting within the purview of Kerala Gambling Act,1960-a legislation which bans gambling/betting-within a period of two weeks.
- A division bench comprising Chief Justice S Manikumar and Justice Shaji P Chaly was informed by the Government Pleader that the State Police Chief has submitted a proposal to bring online betting under the Kerala Gaming Act and that the Government was considering the same.
- The Court was considering a Public Interest Litigation filed by film director Pauly Vadakkan seeking action against web portals promoting online rummy and similar gambling activities. The Court had earlier issued notice to Indian Cricket captain Virat Kohli, actors Tamanna Bhatia and Aju Varghese, who were brand ambassadors for online rummy portals.
- “Play Games 24*7 Private Ltd” and “Mobile Premier League(MPL)”- two companies running online betting portals- were also made respondents in the petition.
- Petitioner has submitted that the law relating to gaming in Kerala, is mainly dealt with Kerala Gaming Act, 1960. However, the Act does not extend its power to any gambling, wagering or betting games conducted through online platforms, by using electronic and communication devices. The idea of Games, as envisaged under the Act, exclusively includes those games that are conducted in a ”common gaming house” by using “instruments for gaming” for the purpose of accrual of profit or gain to the person owing, occupying, keeping such instruments of gaming in the enclosed physical promise. Thus, there is always an element of physical premise present in it. Therefore, the online gambling games do not come under this legislation.
- According to Mr.Jomy K. Jose, learned counsel for the petitioner, online gambling platforms are engaged in illegal activities and they remain unchecked, owing to deficiencies in the legal infrastructure. Gambling through online platforms is now a growing menace in the State.
- These platforms that are even endorsed by celebrities attract their audience with false promise, easily making a fool of unsuspecting people. Primary targets will be middle to low income people who are enticed to make easy money. People fall prey to these fraud platforms only to loose what’s left of their life’s savings. There have been reports of such scams from across the state”, the petition stated.
- The petitioner highlighted the recent suicide of a Kerala youth after he lost money in online betting.
- It was pointed out that the High Courts of Madras and Gujarat have passed directions against online gambling, and states of Andhra Pradesh, Assam and Odisha have brought laws against it.
- In this connection, the petitioner pointed out that the Kerala Gaming Act 1960- which regulates gambling activities- is inadequate to deal with the challenges posed by online gambling as it does not have provisions covering activities done virtually via electronic devices.
- Placing on record the submission of the learned Government Pleader, Respondents 1 and 2 (Chief Secretary to Government, State of Kerala and the Secretary to the Government, Information Technology Department) respectively, are directed to take appropriate decision on the aspect of inclusion of online gambling and online betting, within the purview of the Kerala Gaming Act, 1960, within a period of two weeks from today. With the above directions, the writ petition is disposed of.
Gujarat Prevention of Gambling Act, 1887
- The Gambling Act of Gujarat forbids gambling or being located within illegal venues such as those considered gaming-houses.
- Organizing gambling or holding a gaming-house risks imprisonment for a minimum of three months for first-time offenders plus a minimum of ₹500 fine, up to one year in prison, and a minimum of ₹2,000 fine for third-time offenders.
- Persons found gambling or present at an illegal venue risks at least two months in jail and a ₹300 fine for a first-time offense, while a third-time offender risks at least nine months imprisonment and at least ₹300 fine.
Gamblers are often tempted to play for longer durations and up the ante when it appears to them that they are just about to win. This is, quite often than not, a mirage, and over time, this overly optimistic attitude manifests itself as ‘loss chasing’, wherein gamblers keep on playing in an effort to recover their incessantly accruing loss. ‘Loss chasing’ is one of the most important identifier of ‘problem gambling’, and closely resembles drug addiction. Problem gamblers also experience cravings and withdrawal-symptoms when deprived of gambling. That identical view can be adopted even for the State of Gujarat, as the definition of Gambling remains comparable even for the State of Gujarat vis a vis the State of Kerala. Therefore, we strongly believe that a uniform legislation may be implemented all throughout the country in order to avoid policy lapses being advantageously used by the service providers of Gambling Apps.