The Curious Case Of The Indian Gaming L A Ws

The Curious Case of the Indian Gaming LawsLegal Issues Demystified1. Gambling, Skill Games and LotteriesI. Overview of the LegalFramework Regulating TheGambling IndustryA. Physical Gambling & SportsBettingUnder the Constitution of India, the statelegislatures have been entrusted with thepower to frame state specific laws on ‘bettingand gambling’.3 The Public Gambling Act, 1867(‘Public Gambling Act’) has been adoptedby several states including Uttar Pradesh,Madhya Pradesh and Delhi. The other statesin India have enacted their own legislation toregulate gaming / gambling activities withinits territory (“Gambling Legislations” or“Gaming Legislations”). Most of these GamblingLegislations were enacted prior to the adventof virtual / online gambling and thereforeprimarily refer to gambling activities takingplace in physical premises, defined as “gamingor common gaming houses”.Some Gambling Legislation regulating physicalgambling and sports betting are as follows: Punjab Public Gambling Act, 1867 Sikkim Online Gaming (Regulation)Act, 2008 Tamil Nadu City Police Gaming Rules,1949 Tamil Nadu Gaming Act, 1930 The Andhra Pradesh Gaming Act, 1974 The Andhra Pradesh Gaming Rules, 1976 The Delhi Public Gambling Act, 1955 The J. & K. Public Gambling Act, 1977 The Kerala Gambling Act, 1960 The Meghalaya Prevention of GamblingAct, 1970 The Pondicherry Gaming Act, 1965 The Rajasthan Public Gambling Ordinance, 1949 The West Bengal Gambling and PrizeCompetitions Act, 1957 The West Bengal Gambling Rules, 1958 Uttar Pradesh Public Gambling Act,1961 Assam Gaming and Betting Act, 19703. Bombay Prevention of Gambling Act, 1887 Goa, Daman and Diu Public GamblingAct, 1976 Karnataka Police Act, 1963 Madhya Pradesh (C.P.) Public GamblingAct,1867 Madhya Bharat Gambling Act, 1949 Orissa Prevention of Gambling Act, 1955 Public Gambling Act, 1867 (applicableto Uttar Pradesh, Punjab, Delhi andMadhya Pradesh)Constitution of India, Seventh Schedule, List II, Entry No. 34 Nishith Desai Associates 2019B. Online GamblingThe Gambling Legislations were introducedbefore the emergence of the internet. Therefore,the provisions of these laws do not expresslycontemplate online gambling. The states ofSikkim and Nagaland are the only states to haveadopted specific legislation that permits andregulates online gambling, namely the: Sikkim Online Gaming (Regulation) Act2008 (“Sikkim Gambling Law”) was passedon June 28, 2008 with the dual objects ofcontrolling and regulating online gamingthrough electronic or non-electronic formats,and imposing a tax on such games in theState of Sikkim. The Sikkim Online Gaming(Regulation) Rules, 2009, were subsequently3

passed on March 4, 2009 (and the same havebeen amended from time to time). Nagaland Prohibition of Gambling andPromotion and Regulation of OnlineGames of Skill Act 2015 and the NagalandProhibition of Gaming and Promotionand Regulation of Online Games of SkillRules 2016 (“Nagaland Gambling Law”),which regulate games of skill such as chess,sudoku, quizzes, binary options, bridge,poker, rummy, nap, spades, auction, solitaire,virtual golf and virtual racing games.hotels. In Goa, the law also permits casinos onboard an offshore vessel.D. LotteriesThe court held that:” What is the manner inwhich the games are conducted and how it is beingconducted through online methods and what are thestakes involved in the matter are all issues whichmay arise for consideration.”Under the Constitution of India, the centrallegislature has the power to enact laws withrespect to lotteries.7 Lotteries have been expresslyexcluded from the purview of the GamblingLegislations and are governed by the central law Lotteries (Regulation) Act, 1998 under which theLottery (Regulation) Rules 2010 (“Central LotteryLaws”) and state specific rules have been framed(“Lottery Laws”). The Central Lottery Lawsallow the state governments to organize, conductor promote a lottery, subject to the conditionsspecified in the Central Lotteries Laws. Thestate governments may appoint an individualor a corporate as a “distributor or selling agent”through an agreement to market and sell lotterieson behalf of the organizing State. While somestates such as Punjab, have gone to the extent ofspecifically providing for and approving onlinelottery systems8 to be governed by the stateLottery Laws, lottery is banned in certain statesin India, for example Madhya Pradesh. Section294 A of the Indian Penal Code, 1860 (“IPC”)specifically prohibits private lotteries. CertainStates have repealed Section 294 A of the IPCand enacted their own legislations banninglotteries apart from non-profit lotteries (such asthe States of Andhra Pradesh, Gujarat, Karnataka,Maharashtra, etc.). Certain other States haveintroduced legislation expressly banning lotteriesin their States (e.g. the State of Bihar vide theBihar Ban on Lottery Act, 1993).C. CasinosE. Daily Fantasy SportsThe Gambling Legislations regulate casinosin India. The Gambling Legislations of Goa,Daman & Diu5 and Sikkim6 allow gamblingto a limited extent, under a license, in five starCertain versions of Fantasy Sports games can beargued to be preponderantly skill based gamesin the Indian context. Accordingly such gamescan be treated as exempted under the GamingLegislations.Further, the state of Telangana has amended theGambling Legislation applicable to Telanganaas an amendment to the legislation, which interalia, expands the scope of offences to apply tothe online medium as well. The Kerala HighCourt in the case of Ramachandran K v TheCircle Inspector of Police has held that playingRummy for stakes would amount to the offenceof gambling under the Kerala Gaming Act, 1960.A review petition was filed against the order ofthe High Court of Kerala in the matter of PlayGames 24x7 Pvt. Ltd v Ramachandran K & Anr.4However, the court dismissed the petition, andheld that whether playing Rummy for stakes ornot (including online Rummy) would amountto a violation of the Kerala Act would have to beseen on a case to case basis.4.RP No. 514 of 2019 in WP (C) 35535/20185.The Goa, Daman and Diu Public Gaming Act, 1976.6.Sikkim Casinos (Control and Tax) Act, 2002 read withSikkim Casino Games Commencement (Control and Tax)Rules, 2007 and Sikkim Casino Games (Control and Tax)Amendment Rules, 20114The High Court of Punjab and Haryana has heldDream 11’s format of fantasy sport to be a game7.Constitution of India, Seventh Schedule, List I, Entry No. 40.8.AIR 1996 SC 1153 Nishith Desai Associates 2019

The Curious Case of the Indian Gaming LawsLegal Issues Demystifiedof skill in the case of Shri Varun Gumber v. UTof Chandigarh & Ors. (“Varun Gumber Case”)Thereafter, the High Court of Bombay alsorecognized that the same format of fantasy sportwas a game of skill in Gurdeep Singh Sachar v.Union of India.9F. Horse RacingHorse racing has been given a special statusunder the Gambling Legislations. Mostlegislations specifically exclude betting onhorse races from within their purview, subjectto certain conditions. In K R Lakshmanan vsState of Tamil Nadu10 (“Lakshmanan Case”), theSupreme Court held that betting on horse racingwas a game of skill since factors like fitness, andskill of the horse and jockey could be objectivelyassessed by a person placing a bet. The analysisis interesting to note as this reasoning couldpossibly be used to justify other forms of bettingas games of skill, especially sports betting.II. Physical & InternetGamblingThe most common forms of gambling in India,from time immemorial, are the many versionsof card games like teen patti (akin to flush), poker,rummy and bridge, as well as sports betting.With the dawn of technology, these games haveeffectively extended their reach and popularityvia the digital medium. Most popular onlinegambling sites in India are card games siteshosting Rummy and Poker tournaments.The Gambling Legislations were enactedwhen digital media and internet wereuncommon and its reach was not as far as it istoday. The Gambling Legislations deal withgambling in the context of a physical enclosure,termed a “common gaming houses”. Therefore,when these Gambling Legislations are read inthe context of online and digital gambling, theirinterpretation and applicability gets complex.9.Bombay High Court, Criminal Public Interest LitigationStamp No.22 Of 2019.A. Meaning of Gambling‘Gambling’ as per most Gambling Legislationsis understood to mean “the act of wageringor betting” for money or money’s worth.Gambling under the Gambling Legislationshowever does typically not include (i) wageringor betting upon a horse-race/dog-race, whensuch wagering or betting takes place in certaincircumstances, (ii) games of “mere skill” and (iii)lotteries (which is covered under Lottery Laws).B. Exemption for Betting onHorse RacingWhile carving out betting on horse racingfrom falling outside the purview of ‘gaming/gambling’, most Gambling Legislations providecertain conditions that are required to be met.The turf clubs where the horse races are heldoperate under a license from the respectiveState governments (“Horse Racing LicensingLegislations”).In most states, the Gambling Legislation provideexemption for betting on horse races fromthe definition of “gaming/gambling” whenwagering or betting takes place:i. On the day on which such race is to run;ii. In an enclosure which the licensee of therace-course, on which such race is to be run,has set apart for the purpose under the termsof the license issued to the licensee in respectof such race-course.The definition of ‘gaming/ gambling’ furthersuggests that the licensee of the race course onwhich the race is to be run, can set up separateenclosures for the purposes of betting on horseracing, subject to the terms of license issuedto the licensee. It is pertinent to note that, theGambling Legislations of some states read withrelevant Horse Racing Licensing Legislations,viz. Maharashtra, West Bengal, Andhra Pradesh,Karnataka and Tamil Nadu provides thata licensee can set up the enclosure subject toprior approval of the state governments subjectto certain conditions.10. AIR 1996 SC 1153 Nishith Desai Associates 20195

C. Games of Skill OutsideThe Purview of GamblingThe Gambling Legislations provide that therestrictions would not apply to games of “mere skill”.The Supreme Court of India (“SC”) hasinterpreted the words “mere skill” to includegames which are preponderantly of skill andhave laid down that (i) the competitions wheresuccess depends on substantial degree of skillwill not fall into category of ‘gambling’; and(ii) despite there being an element of chance,if a game is preponderantly a game of skill,it would nevertheless be a game of “mereskill”.11 Whether a game is of chance or skill isa question of fact to be decided on the facts andcircumstances of each case.12 The judicial viewhas been very strict in this regard.Thus, it may be possible that games whichsatisfy the test of “skill versus chance” are notregulated under the Gambling Legislations andmay be legally offered through the physical aswell as virtual mediums (including internet andmobile), throughout India.In the case of State of Andhra Pradesh v. K.Satyanarayana & Ors.13 (“SatyanarayanaJudgment”), the SC specifically tested the game ofrummy on the principle of skill versus chance andheld that Rummy was not a game entirely basedon chance like the ‘three-card’ game (i.e. ‘flush’,‘brag’ etc.) which were games of pure chance. Itwas held that Rummy was a game involving apreponderance of skill rather than chance. TheSC based its conclusion on the reasoning thatRummy requires a certain amount of skill as thefall of the cards needs to be memorized, and thebuilding up of Rummy requires considerableskill in holding and discarding cards. The chanceelement in Rummy is of the same level as thatinvolved in a deal in a game of bridge. In allgames in which cards are shuffled and dealt out,there exists an element of chance, because thedistribution of the cards is not according to a11. State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699.predetermined pattern, but is dependent uponhow the cards find their place in the shuffledpack. In this judgment the SC has also passinglyobserved that bridge is a game of skill.However, the Kerala High Court in the case ofRamachandran K v The Circle Inspector of Policehas held that playing rummy for stakes wouldamount to the offence of gambling under theKerala Gaming Act, 1960. Arguably, games ofskill are exempted from the prohibitions undermost State anti-gambling laws, irrespective ofwhether they are played for stakes or not.A review petition was filed against the order ofthe High Court of Kerala in the matter of PlayGames 24X7 Pvt. Ltd v Ramachandran K & Anr.14However, the court dismissed the petition, andheld that whether playing Rummy for stakes ornot (including online Rummy) would amountto a violation of the Kerala Act would have to beseen on a case to case basis.The court held that:” What is the manner inwhich the games are conducted and how it is beingconducted through online methods and what are thestakes involved in the matter are all issues whichmay arise for consideration.”In most jurisdictions, including India, thegrowing popularity of Texas Hold’em Pokercannot be doubted. Though there is a lack ofclear jurisprudence on this subject in Indiapresently, , there appears to be an increasingtrend internationally considering TexasHold’em Poker as a game preponderantly of skill,and not a game of chance alone, except in thestates of Gujarat and Telangana.D. Concept of Common GamingHousesUnder the Gambling Legislations (except stateslike Assam and Orissa where gambling per se isan offence), most offences and prohibitions arein relation to a “common gaming house”.Generally, under the Gambling Legislations,to qualify as a “common gaming house”, there12. ManoranjithanManamyilMandram v. State of Tamil Nadu, AIR2005 Mad 261.13. AIR 1968 SC 825.14. RP No. 514 of 2019 in WP (C) 35535/20186 Nishith Desai Associates 2019

The Curious Case of the Indian Gaming LawsLegal Issues Demystifiedshould be (a) an enclosed physical premise suchas a house or a tent; and (b) “instruments ofgaming” kept or used in such enclosed physicalpremises for the purpose of accrual of profit orgain to the person owning, occupying, keepingsuch enclosed physical premises or using anysuch instrument of gaming in the enclosedphysical premises; and (iii) profit or gain by wayof charge for use of the same enclosed premisesor “instruments of gaming” or otherwise.However, under certain Gambling Legislations,like Delhi, it may not be necessary for such“profit or gain” to accrue to the person owning,occupying or keeping such premises in orderfor it to qualify as a common gaming house forcertain purposes/games only.“Instruments of gaming” means ‘any article usedor intended to be used as a subject or meansof gaming, any document used or intended tobe used as a register or record or evidence ofany gaming, the proceeds of any gaming, andany winnings or prizes in money or otherwisedistributed or intended to be distributed inrespect to any gaming.’15 In today’s context,there is a school of thought that believes thatcomputer terminals used for gambling andservers on which gambling takes place andrelated e-records are maintained also constitute“instruments of gaming”.On analysis of the definition of “commongaming house” in general under the GamblingLegislations, it seems that the intention of thelegislatures is to impose restrictions on theuse of a physically enclosed premises for thepurposes of making “profit or gain” fromthe use of such premises.Thus, a private house may not ideally constitute a“Common Gaming House”, if there is lack of intenton the part of the owner to derive any profitor gain from the use of his house for gamblingpurposes. Extending the same analogy to thedigital world, when a person is accessing onlinegambling websites from his house, arguably, itmay not be a “common gaming house”.15. The Public Gambling Act, 1867 Nishith Desai Associates 2019The situation may however be different wheresuch gambling activities are carried out inplaces such as clubs or cyber cafés, where thecyber cafés derive profits by allowing the use ofthe computer terminals (which may be caughtwithin the scope of “instruments of gaming”).Most of the Gambling Legislations refer to “anyplace” in the definition of “Common GamingHouse”. In the absence of a specific exclusion,the definition could include a server/portal/website providing means of gaming. Takingmoney for providing the online medium toplay games may also fall within the ambit ofprofiteering from providing and maintaining“Common Gaming Houses”. To put an end tothis confusion, the online rummy websites hadapproached the Supreme Court16 (details ofthe case have been discussed below) to clarifywhether the Gambling Legislations cover onlinegambling portals.E. Offences, Offenders &PenaltiesMost Gambling Legislations prohibit the act of: Owning, keeping, occupying or having careand management of a Gaming House Advancing or furnishing money for thepurposes of gambling to persons frequentingany such Gaming House; Gambling in Common Gaming House orpresent for the purpose of gambling/gamingin Common Gaming House; Gambling or suspected gambling in anypublic street, place or thoroughfare; Printing, publishing, selling, distributing orin any manner circulating anything with theintention of aiding or facilitating gambling/gaming; and Activity of Gambling/Gaming per se (Thisis not applicable to every State. Only theGaming Legislations of States like Orissaand Assam prohibit the activity of gam-16. SLP No. 15371 / 20127

bling/gaming itself, agnostic to the mediumthrough which the gaming is offered). Offering of skills games online in Nagalandwithout a license Offering games in the State of Sikkimwithout a license to operate online games Offering any games in the state of TelanganaThe liability for offences under the GamblingLegislations usually vests with: The owner of the gaming/common gaminghouse; The person keeping or having charge of thegaming/common gaming house; The person gambling or possessinginstruments or records of betting orsuspected of gambling or possessing suchinstrumentsAll Gambling Legislations prescribe penaltieswhich are more or less similar. The BombayPrevention of Gambling Act, 1887 imposesa fine and imprisonment for offenders. A firstoffence is punishable with a fine of at leastINR 500 (approximately USD 8) and 3 months’imprisonment, a second offence is punishablewith a fine of at least INR 1,000 (approximatelyUSD 15-20) and imprisonment for 6 months.and a third or subsequent offence entails a fineof at least INR 2,000 (approximately USD 30-35)and imprisonment for one year.17F. Licenses for GamingWhile all the above legislations prohibitgambling in common gaming houses, thereare certain state legislations that havelegalised some form of gambling and issuespecific licenses to the gambling / gamingestablishments. For instance, the West BengalGambling & Prize Competition Act, 1957(“WB Act”) specifically excludes ‘games ofcards like Bridge, Poker, Rummy or Nap’ fromthe definition of “gaming and gambling”. TheWB Act further exempts games of skill fromits ambit, however provides that where suchgames are p

gaming laws and the evolution of the gambling / gaming industry in India. To clarify, in this paper we have used the term 'gaming' to refer to social and casual gaming. However, under certain Indian laws, gambling activities are referred to as 'gaming', and specific references to the same may be included in this paper.