It's time to rewrite our online gaming laws

Photo: AP
Photo: AP


While the colonial-era Public Gambling Act is still around, this activity is under the legislative jurisdiction of states, which has resulted in a variety of policies in various places in India

The year 2021 witnessed a slew of laws on online betting and gaming being passed across the Indian subcontinent. Some states have imposed outright bans, while others have made restrictive amendments to existing laws governing online gambling. It is fascinating that the state of Karnataka declared a blanket prohibition on all online games involving monetary stakes after a clarification was made by the Madras high court on this issue. While quashing an overarching ban imposed by Tamil Nadu’s gaming amendment in the matter of Junglee Games vs State of Tamil Nadu (2021), the high court clarified that games of skill can be played online for stakes, as they cannot be categorized as betting or gambling.

Given this background, it is imperative for stakeholders in the field of online gaming to understand the policy framework that exists in India. Online gaming policies fall under the legislative jurisdiction of states, as List II of the Seventh Schedule of India’s Constitution features the category of sports, betting and gambling. It may be pertinent to note that a colonial-era statute, the Public Gambling Act (PGA), 1867, remains in force and has been adopted by several states, including Uttar Pradesh, Madhya Pradesh and Delhi. Other states have enacted legislation to regulate gaming and gambling activities within their territories under their gaming laws. Most of these state laws are broadly modelled on the PGA mentioned above, albeit with suitable modifications.

States like Andhra Pradesh, Sikkim and Goa have imposed restrictions up to a reasonable degree, allowing activities based on skill and not chance. These states have amended their state laws to give their police forces greater authority to conduct search and seizure operations. Moreover, these states have declared betting or gambling to be a cognizable offence, allowing the police to act without the need of a magistrate’s permission. On the other hand, states like Tamil Nadu, Kerala and Karnataka have banned online betting and gambling.

The terms ‘chance’ and ‘skill’ have been the subject of several judicial pronouncements, with our courts frequently ruling that games requiring skill rather than chance to win do not fall under the purview of betting or gambling. However, one may infer from recent legislative developments that they are driven by an anticipation of threats posed by internet gambling. By and large, PGA-based laws seek to make gambling a cognizable and non-bailable offence, so as to reduce the public threat posed by online gaming.

The terms ‘gaming’ and ‘betting’ were first differentiated in the case of Public Prosecutor vs Vraj Lal Sheth (1945), when the Madras high court clarified that whereas gaming involves skills, betting or wagering involves winning or losing a stake depending solely on the occurrence of an uncertain event.

Additionally, in the case of Shri Varun Gumber vs Union Territory of Chandigarh and Ors. (2017), the court determined that playing fantasy sports like Dream11 required a significant degree of skill and did not constitute gambling.

As census data shows, the vast majority of India is between the ages of 18 and 35 years. The World Health Organization, in its International Classification of Diseases issued in 2019, had opined that online games are behaviourally addictive. Habitual gamers/betters may fail to take reasonable breaks if their indulgence turns compulsive, while longer sessions of this activity can result in a variety of problems that affect their overall well-being. They may suffer from blurred eye vision, stereotypical mind-sets (as depicted in various games), lack of physical exercise and deterioration in longevity, for example.

Further, some online games use sexual stereotypes for representations of women. This leads to false and inappropriate conditioning of gamers, especially males, that could even affect their attitudes beyond the virtual environment. This warps male-female dynamics in society and widens our societal gender inequity.

Importantly, legislative uncertainty still prevails over classifying various online betting games as either skill- or chance-based. The lack of central regulations that control such operations and vulnerabilities in the system makes space for money laundering or terror funding to take place in the guise of gaming profits booked via bookies.

There is a need for stringent laws expressly meant to safeguard the most vulnerable members of our society, such as children and women. To limit the adverse effects of internet gaming on children, for example, we require appropriate regulatory norms that involve age-verification mechanisms, as also parental control and risk-flagging systems.

It may not be out of place to underscore that the existing law dating back to the colonial era does not meet the needs of a rapidly digitizing world, since it does not provide clarity on ‘online gaming’. It is imperative, therefore, to develop a comprehensive legislative framework that can satisfy the present demands of society. This would conform with the advice offered by the Law Commission of India Report No. 276 of July 2018, ‘Legal Framework: Gambling & Sports Betting including in Cricket in India’.

In conclusion, while online gambling and betting are legal in India, they are subject to restrictions and bans in a few states. So as to facilitate due diligence, good governance and public order, it’s high time we reorganized and rewrote the governing policy framework for online gaming in the country.

Trisha Shreyashi & Vinit Goenka are, respectively, an independent legal professional, and the author of ‘Enemies Within’

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