Online Gambling: Karnataka High Court’s Ruling


    In News 

    • Recently, the Karnataka High Court delivered a judgment striking down major portions of the Karnataka Police (Amendment) Act, 2021.
      • The amendment was introduced by the State government to ban online gambling and skill-based gaming platforms like rummy, poker and fantasy sports that involved any wagering or risking of money on an uncertain event.

    Other High Courts quashing State laws on online gambling and skill-based gaming websites

    • Apart from Karnataka, a similar law introduced by the Tamil Nadu government was struck down by the Madras High Court in August 2021
    • In September 2021, the Kerala High Court had also quashed a notification issued by the State government specifically banning the game of online rummy when played for stakes.

    Major grounds of quashing State law

    • The Karnataka High Court struck down the amendments to the Karnataka Police Act on three major grounds:
      • Violation of fundamental rights of trade and commerce, liberty and privacy, speech and expression
      • The law was manifestly arbitrary and irrational in so far as it did not distinguish between two different categories of games, i.e. games of skill and chance
      • lack of legislative competence of State legislatures to enact laws on online skill-based games.

    Other reasons 

    • The court held that games, where substantial effort, knowledge and skill is required, are different from games of mere luck or chance. 
    • Relying upon previous judgments of the Supreme Court which had held rummy, fantasy sports and betting on horse-racing to be games of skill, the High Court ruled that online games involving skill, regardless of whether money is staked on them or not enjoy the protection of the right to trade and commerce, unlike gambling or betting.
    • The court also held that the State government provided no evidence or data on whether a sweeping ban was justified and neither constituted a committee of experts to study the issue. 
    • The court also held that playing online games could help in building the character of an individual and enjoying online gaming could also fall within the contours of freedom of expression and the right to liberty and privacy guaranteed under the constitution.
    • The judgment also noted that State governments have been granted powers under the constitution to make laws for ‘gambling and betting’ but interpreted the word ‘betting’ for this purpose to mean betting on gambling games, i.e. betting on games of chance and not games of skill.

    Why are States resorting to banning online gaming?

    • Many social activists, government officials and those in law enforcement believe that online games like rummy and poker are addictive in nature; and when played with monetary stakes lead to depression, mounting debts and suicides.
    • Reportedly, there have been a few instances where youngsters, faced with mounting debts due to losses in online games have committed other crimes like theft and murder.
    • Some experts also believe that online games are susceptible to manipulation by the websites operating such games and that there is a possibility that users are not playing such games against other players, but against automatic machines or ‘bots’, wherein there is no fair opportunity for an ordinary user to win the game.

    Online gaming in India 

    • The country is the biggest market for fantasy sports globally, with over 13 crore users playing across over 200 platforms.
    • India mainly puts the games into two broad categories to differentiate them. The two categories are that the game is either a Game of Chance or a Game of Skill.
      • Game of chance: Games of chance are all those games that are played randomly. These games are based on luck. A person can play these games without prior knowledge or understanding. For instance, dice games, picking a number, etc. Such games are considered illegal in India.
      • Game of skill: Games of skill are all those games that are played based on a person’s prior knowledge or experience of the game. A person will require skills such as analytical decision-making, logical thinking, capability, etc. Some games might also require some initial training to win. Such games are considered legal by most of the Indian states.

    Legislation linked to it 

    • Betting and gambling can be found in part II of the State list.
    •  They have been mentioned in detail in the seventh schedule of the Indian Constitution.
    •  In other words, this simply means that the state government can exercise full control over betting and gambling practices in their state.
    • They can also formulate their state-specific laws. A good example of this is the choice given to most states for the adoption of the Public Gambling Act, 1976.

    Consequences of Banning online gaming

    • An outright ban may not entirely curtail the playing of such online games, with or without stakes.
    •  Telangana, which was the first State to ban online games for stakes in 2017 has seen a spurt of illegal or underground online gambling apps, most of which originate from China or other foreign countries, and accept payments from players through dummy companies or hawala channels. 
      • Both the Enforcement Directorate (ED) and local cybercrime authorities have tried to crack down on such apps but with limited success.
    • Shifting of users to grey or illegal offshore online gaming apps not only results in loss of tax revenue for the State and job opportunities for locals but results in users being unable to avail remedies for any unfair behaviour or refusal to pay out winnings.

    Latest Developments 

    The Tamil Nadu government has filed an appeal in the Supreme Court against the August 2021 order of the Madras High Court striking down its online gaming law. 

    • Presently, it is unclear whether the Karnataka government is also planning to file an appeal to the Supreme Court. 
    • However, at least the Tamil Nadu government’s appeal is expected to be listed before the apex court in the coming weeks.
    •  It is expected that the Supreme Court will give its conclusive verdict on the issue of whether online real money games can be outrightly banned and whether the State or Central government has the power to enact legislation on the subject.
    • For now, online gaming companies will continue to offer different formats and variations of online real money games, with the distinction between skill-based and chance-based games at times becoming blurry and debatable.

    Way Forward 

    • Regulation of online games may be a better and proportionate solution rather than an outright ban 
      • one could look at licensing and regulating the industry with various checks and balances such as diligent KYC and anti-money laundering processes, barring minors from accessing real money games, placing weekly or monthly limits on the money that can be staked or time that can be spent, counselling for addictive players and allowing self-exclusion of such players etc.
    • Realising the potential of the online gaming sector, the State and the Union Governments should work together in consultation with industry stakeholders to draw out detailed guidelines.
    • It is left open for the State government to come up with new legislation dealing with betting and gambling in accordance with the provisions of the constitution.

    Source: FE