This article has been written by Priyesh Singh, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
Gambling is defined as betting, gaming, or participating in an activity that is based on luck not on the skills to win a huge amount of money or any other prize by wagering some amount of money. To control gambling across the country legislation was passed in the year 1867, the Public Gaming Act of 1867, and is the most important legislation that regulates gambling in India.
Under the gambling legislation, the meaning of the act of wagering or betting for money or money worth is understood in the 2006 “jay video games and electrical v. State of Gujarat’’ case.
So here we discussed about the gambling, why it has become a more sensible topic in India and other countries, how it has come in scenario where their strict laws are must needed, why gaming skills are excluded from gambling or why Indian law classifies the games into two broad categories i.e. game of chance and game of skills. What are those games where gambling is not a big deal?
As per the status of the legality of Gambling in India, there is no unified law regarding any activities of gambling as it comes under the State list of the 7th schedule of the Constitution. So the gambling is a state subject, so the state has only the rights to regulate the law for the gambling activities in their respective territory. The state legislatures, under the Constitution of India, have been entrusted with significant regulatory flexibility to form state-specific gambling laws.
The Gambling Act is the central enactment that has been adopted by certain states in India and other states have enacted their own legislation to regulate and govern gambling activities within their territory. So some states have allowed or some have banned gambling in their state. For example, casinos are banned in the other states except for Sikkim, Goa and Daman.
As per Section 12 of the Public Gaming Act 1867, any game of mere skill will not be treated as gambling, but games of chances will be treated as gambling.
The Public Gambling Act of 1867 is a central law that prohibits running or being in charge of a public gambling house. The penalty for breach of this law is a fine of Rs. 200 or imprisonment of up to 3 months. Additionally, this Act prohibits visiting gambling houses. A fine of Rs.100 or imprisonment of up to one month is the penalty.
There is always a doubt regarding which games are covered under gambling because poker in India has very unclear significance in Indian law because it could never figure out whether it is a game of skills or a game of chance. It’s very interesting that games, such as wagering on cricket, are prohibited and while Rummy is permitted as observed by the court under Mahalakshmi Cultural Association v. The Director, Inspector General of Police, State of Tamil Nadu in 2012. Gone are the times of Matka betting and the preferences in India. These days, you can just wager on a couple of sports, that too in some states. As of now, betting on horse racing, online poker in states like Goa and Sikkim, online rummy, lottery, and a couple of gambling clubs are legal in India in accordance with the case of K .R Lakshmanan v. state of Tamil Nadu in 1996.
Not only wagering on games is illegal, visiting or working in those places is also unlawful or illegal under section 4 of the Public Gaming Act. It is likewise unlawful to visit such a place. The main problem is that the exact meaning of betting is not adequate in the legislation. As per the Act, it states Gaming as betting or wagering of money on a game which is a game of chance and not of skill except Horse Racing.
This makes it difficult to decide whether any activity of gambling should be considered illegal or not. In the Indian Contract Act under section 30 wagering contract is defined as the agreement is void, by the way of wager, with an exception prizing on the Horse Racing, this section does not give the sufficient definition of wagering as given under the case Babasaheb Rahimsheb v. Rajaram Raghunath Alpe in 1930. Apart from this, even when courts wanted to rely on a definition, they simply had interpreted the definition of gaming as provided in the Public Gaming Act according to their cases.
Laws on online-based betting
In the Public Gaming Act of,1867 there were no provisions related to online-based betting. There is in addition to this Act another act that could be considered to identify with web-based wagering and gaming i.e. The Information Technology Act of 2000. From this Act, it is very easy to identify the offences with online gambling and gives the government ability to check and search if required. However, this Act also does not mention online-based gambling like Public Gaming Act, 1867 does.
The laws for online gambling are enacted by several states also like Sikkim. The state of Sikkim enacted the Sikkim Online Gambling (Regulation) Act,2008, which was passed on 28th June 2008 by the Sikkim Legislative Assembly with the object of controlling and regulating through electronic and non-electronic ways in online gaming. And imposes Tax also on online gaming within its territory.
There are few amendments also made on the Sikkim online gaming (Regulation) Act, 2008 restricting the “online games and sports games” offering licenses under the said Act to the gaming parlours or premises within its geographical territory.
Like Sikkim, Nagaland assembly has also implemented the Nagaland Prohibition of gaming and promotion and regulation of online Games of skill Act, 2016. This Act provides for regulation and promotion of “games of skills’’ through the issuance of licenses to the person or the company or limited liability company under this act, the same shall be considered a genuine business venture not amounting to gambling.
Except for these states, none other state has specifically mentioned Online Gambling in there legislation.
Game of chance or game of skills
Gambling is understood both under its traditional form as well as modern avatar. The traditional gambling is understood in the context of physical space, brick and mortar format, whereas modern gambling consists of computers connected offline or online, mobile phones, internet, etc. the Gambling legislations exclude the “game of skills” from the statute of gambling and hence doesn’t attract the penal provisions.
A game of chance is a game where the result is leveraged by a random number creator in which the participant may choose to bet money for that result. While in a game of skill, A person bet on the result which comes out of the skills of person or person requires them to have a degree of mental expertise to succeed, for example, Betting on Horse racing. However, in games like Poker and Rummy, many times the courts got confused about whether these are Game of Chance or Game of Skill.
If talked about Poker, in most jurisdictions of India, there is a still an ambiguity on this subject in India presently, there appears to be an increasing trend internationally considering Poker as a game, and not a game of chance alone, except in the states of Gujarat and Telangana according to the case of Dominance Games Pvt. Ltd. V. State of Gujarat & Ors in 2017, the Gujarat court held that poker is a game of chance and accordingly poker games and conducting the poker games falls within the prohibitions under the Gujarat Gambling Legislation.
Under the Public Gaming Act,1867 any person is found playing games for money, wager, stake or something else with cards, dice, counters, shall be liable to imprisonment for any term not exceeding one month and fine not exceeding one hundred rupees. As per the section 45 of the Indian Penal code 1860.
Any person found in such gaming rooms during any gaming or playing there shall be presumed, until proven, to have been there for gaming purposes.
Whereas there are various legislations in India, even every state has its own legislation for gambling as legal and regulated in the most appropriate ways. There is a need for a section or portion which would provide which type of gambling is legal and which is not. Apart from this, there is a need for central laws for online Gambling, we see that few States like Goa, Sikkim, and Nagaland are the only states that permit online gambling. Also, such a type of thing showed that there are no possible ways to stop or curb. At least something could be done to regulate this.
The Government, being a welfare State, acts in a manner to promote the economic and social well-being of its citizens, and therefore, it is necessary for the State to protect the sensitive sections of the society. About gambling, they can at least form a committee to survey the need for gambling and improvisation on the current legislation based on that survey. Thus, there is a need for aggressiveness to be taken from the side of the executives as well as the parliament to provide such norms which would codify the system of gambling in India.
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