JUDICIARY AGAINST GAMBLING – PASS OR FAIL? [2020]

Author: Ms. Sakshi Garge 
Content Writer

JUDICIARY AGAINST GAMBLING: ‘Gambling’ – an activity that is illegal in the eyes of lawmakers and legal in the eyes of society!

Gambling is a Principle inherent in Human Nature

Edmund Burke.(Irish Philosopher)

JUDICIARY AGAINST GAMBLING: INTRODUCTION AND MEANING –

The term Gambling is a broad concept that includes Arcades, Betting, Casinos, Lotteries, etc. The hit concept now is IPL betting which we can witness majorly online.

The general definition of gambling is the wagering of money or something of a certain value on an event with expecting an uncertain outcome, with the primary intent of winning money or material goods(tangible).

The main ingredients to say it as gambling the following three ingredients are required:
1. Consideration
2. Risk
3. Prize

In other words, we can say it is a game of chance, a game of uncertainty with a certain risk. Now speaking about gambling, we need to understand the division and then going forward towards its judiciary. The basic distinction is 1. Based on chance and 2. Based on skill. It is an activity where money, risk, luck is present.

The traces of gambling can be seen in Ramayana, Mahabharata, Manu Smriti, Kautilya’s Arthshastra, Brihaspati, Katyayna Smriti, Yagnyavalya Smriti, Atharva Veda, Rig Veda[1] to get a clear picture of the act and its circumstances; where Indian society has traditionally frowned upon gambling.

Mainly the traditional gambling was done physically with the use of cards, dice, coins/stamps, etc. but now when everything goes online the gambling activities are available online too which is difficult to trace jurisdiction and available to almost 200+ countries.

GAMBLING: A GAME OF CHANCE AND/ OR A GAME OF SKILL

With the increasing popularity of revenue generated by gambling, betting in India, the fact is Indian laws do not suffice to give a legal cover or judiciary. Gambling is not defined; the dictionary meaning is “to stake something on a contingency or take a chance. This we can say as a self-made risk putting to an uncertain event. Yet as we clearly have an idea, that how and what laws should be made to an uncertain event is something different, not like insurance policies!

Goa legalized gambling bypassing the Goa, Daman, and Diu Public Gambling Act,1976, and the state of Sikkim by enacting The Sikkim Regulation of Gambling (Amendment) Act,2005. Gambling, a game of chance or a “game of probability” does not include horse racing (subject to legal regulations), games of skill (court judgment), and lotteries (lottery laws). There is great confusion as to whether gambling is a game of skill or a game of chance.

JUDICIARY AGAINST GAMBLING

If it is a game of skill[2]( game of cards-rummy seen as a skill), then it is excluded from our present judiciary, and if it is a game of chance[3] (rummy seen as a chance), where yes luck has a role and that is what a question, then falls under our current unchanged judiciary. It is a CHANCE or SKILL which will have a mark to decide what it really is. The court has pointed out that a game to call as a game of chance, the element of chance should be in predominance over the skill.

The Apex Court in Dr. R. K. Lakshmanan held that horse racing or jockey is a game of skills under the Madras City Police Act,1888, and the Tamil Nadu Gaming Act,1930, said it is a game of evaluative skills.

JUDICIARY AGAINST GAMBLING: THE PRESENT SCENARIO –

Mainly the traditional gambling was done physically with the use of cards, dice, coins/stamps, etc. but now when everything goes online the gambling activities are available online too which is difficult to trace jurisdiction and available to almost 200+ countries.

The present scenario of gambling in India is still in grey area because being it a State subject according to the Constitution of India and thus differs across the whole country. And thus, the rules are different across the continents. When we see activities like gambling, they are illegal to the Indian legal systems and lawmakers. But we cannot deny the fact that the same Indian society too is involved in these activities generating considerable revenues.

Though this subject falls under the state jurisdiction, few states have shown a green signal to gambling. The controversial point is whether and why gambling activities are illegal. The games which include risk and uncertainty are illegal but the games including the special skill or human polished technique (not super extraordinary) are not illegal. [4] So, the game which involves skill is valid and luck-based is illegal.

WORLD IN GAMBLING

Going by the continents, Europe-the highest and biggest market are UK, Spain, Germany which have legal, lawful, and regulated land based and also in online mode, whereas France and Iceland have banned online but legalized land-based gambling. America- a few American states, Canada and Mexico have legalized all types of gambling. Africa- Over 30 countries have lawful gambling activities, the same as Australia. Asia- China has the highest mark and japan and Singapore has legal gambling.

JUDICIARY AGAINST GAMBLING

Speaking about India, here it is more of Matka than proper gambling. High-level gambling is concentrated in other countries like the UK, America having big fat turnovers.[5]   

JUDICIARY AGAINST GAMBLING

After having a look at the legal scenario and law report, the statement is apt “Legalizing gambling would help curtail a vital black money revenue source”. The following points need to be taken into consideration about legalizing gambling-1. Reached its great heights, 2. Laws won’t be able to stop, 3. Underworld dons’ control over gambling, 4. Terrorism, if done as said earlier will be a great source of revenue to the government and worldwide employment opportunities. Over the years, gambling has changed, the problem of gambling addiction, family disturbances, loss of lives, bankruptcy has risen.

Further, “the surety after the legalizing the gambling activities.” In the 276th report, the panel had quoted that “it is like arguing that we are not able to control road accidents due to drunken driving, so we should consider legalizing drunken driving and impose large fines to generate fat revenue”.

LEGAL SCENARIO

  1. PHYSICAL GAMBLING
  2. ONLINE GAMBLING

PHYSICAL GAMBLING:

The Public Gaming Act,1867[6] clearly states that “nothing in this act shall apply to games of mere skill wherever played” and makes clear the controversial point that skill games like horse racing are not illegal. Gambling is heavily banned in India except for a few selective categories like horse racing, lotteries. Gambling is a state subject, and only the states are entitled to formulate the laws for gambling activities within their jurisdiction.

Being a state subject, states that have legalized gambling are Goa, Sikkim, and Daman in India. The revenues from casinos of these states are quite high and prove a sound source of revenue to the government. The PGA, 1867 is a central law in India that prohibits running or being in charge of a public gaming house.

The penalty for this is a fine of Rs. 200 or imprisonment of up to 3 months. Moreover, this act also prohibits visiting gambling houses and the punishment is fine of Rs.100 or imprisonment for up to 1 month. The PGA of 1867 was made at the time of British rule when India was not an independent nation. The punishments are so less than in today’s era the punishment is not complimenting the crime. Yet the states like Goa, Daman, and Sikkim have made amendments but the other states continue to use ancient law because having their legal roots deep in history.

  1. Physical / Online gambling: – dice, bingo, poker, etc.
  2. Casinos: – Goa and Sikkim Acts, rest still in grey areas.
  3. Lotteries: – Central lottery laws
  4. Horse racing: – totally a game of skill
  5. Daily Fantasy Sports: – predominant skill-based. E.g. Rummy, dream11

ONLINE GAMBLING –

When speaking of online gambling, the gambling has a picture of physical gambling, casinos, lotteries, horse racing, betting, fantasy sports, etc. so the question here arises as to how can this go online in the names of play rummy, dream11 IPL, where again the point of chance or skill goes baseless.

Online gaming[7][8] is regulated by the Information and Technology Act,2000[9]. The IT Act, 2000 regulates cyber activities in India and prohibits publication or transmission of information, including online gambling with their punishments. The punishment for the offense of online gambling in India is fine of Rs. 1,00,000 and/or imprisonment up to 5 years[10], which far more than the physical gambling penalty.

RECOMMENDATIONS BY LAW COMMISSION OF INDIA

276th Law commission Report on Legal Framework: Gambling and Sports Betting Including in Cricket in India.

  • The law commission of India[11] had in its report to the government, said that since it is impossible to stop illegal gambling, the only viable option left is to “regulate” gambling in sports. The committee was headed by the former Supreme Court Judge, Justice B.S. Chauhan where he recommended “cashless” gambling in sports as a means to increase the revenue and deal a bit with illegal gambling and such unlawful activities.
  • Further, the panel added, that the transactions between gamblers and operators should be linked to Aadhar and PAN cards so as to keep an eye on the government.
  • There should be a classification of ‘proper gambling’ and ‘small gambling’ as for rich playing for high stakes and low-income groups respectively. The panel also suggested the government to introduce a cap/ slab (limit) on the number of gambling transactions for individuals periodically.
  • The money generated can be used for public welfare and for that gambling revenue should be made taxable under Income Tax Act, Goods, and Services Act. Regulations are needed to protect vulnerable groups, minors and below the poverty line, those who survive from social welfare measures, government subsidies, JanDhan yojana.
  • Even a few amendments are recommended in various Acts and statutes like Foreign Exchange Management, Foreign Direct Investment, National Sports Development Code, sec 30 of wagering contracts Indian Contract Act, IT Act; encouraging FDI and Licensing, Collaborations, etc.
  • There is a report formulated where the Supreme Court directive issued in the case of Board of Control for Cricket in India v. Cricket Association of Bihar and others. The reason stated was online gambling and betting have acquired a global presence.

CONCLUSION

In my opinion, the fact cannot be denied that gambling won’t stop, what we can do is legalizing and have reasonable restrictions being totally a state subject. It can be made lawful in few parts of the country, but at the same time when the option of online gambling is the available place wouldn’t matter and will be accessible to anyone having mobile and internet and connect with the rest of the world.

The distinction is now a must between the GAME OF CHANCE and the GAME OF SKILL then the only the judiciary will have its firm place. The balance is a must in forming laws and amendments are welcomed as we are running through real ancient laws in highly changing times. If the said changes are done then we may say that the judiciary has passed against gambling!

REFERENCES –

  1. Public Gaming Act, 1867
  2. Information and Technology Act,2000
  3. The Hindu Newspaper Article
  4. The Goa, Daman and Diu Public Gaming Act, 1970
  5. Sikkim Casinos Act,2002
  6. 276th Law Commission Report of India.
  7. Cases Mentioned.

OTHER REFERENCES-

[1] 276th Law Commission Report of India.

[2] State of Andhra Pradesh v. K. Satyanarayana and ors.

[3] Manoranjitham Manamyil Mandram v. State of Tamil Nadu.

[4] Dr. k. r. Lakshmanan v State of Tamil Nadu

[5] The Hindu newspaper article.

[6] Hereafter referred as PGA.

[7] M/S Gaussian Network Pvt. Ltd. V. M/S Monica Lakhanpal

[8] Sikkim Online Gaming Regulation Act,2008

Nagaland Prohibition of gambling and Promotion and Regulation of Online Games of Skills Act,2016.

[9] Hereafter referred as IT Act.

[10] For all types of gambling like sports gambling

[11] Law commission of India – 276 report

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