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Blanket Online Gaming Bans Contradict the Constitution and Fail Court Scrutiny
The last several months witnessed a series of blanket bans on online gaming in different states of India get quashed by High Court decisions, all with similar reasoning for contradicting the Union Constitution by clubbing online fantasy sports, rummy, chess and other games of skill played for prizes together with real money online roulette, blackjack, teen patti and other games of chance.
The latest outright ban on online gaming that failed court scrutiny was contained in the recent amendment to the Karnataka Police Act which had come into force upon notification on October 5, 2021. On March 14 this year, a division bench of the state’s High Court ruled that, “The provisions of Sections 2, 3, 6, 8 and 9 of the Karnataka Police (Amendment) Act 2021 are declared to be ultra vires of the Constitution of India in their entirety and accordingly are struck down.”
On September 27, 2021, the High Court of Kerala struck down a notification by the state government from February banning the game of rummy when played online for stakes by placing it outside the exceptions granted to skill games under Section 14A of the Kerala Gaming Act. According to the court’s reasoning, “playing for stakes or not can never be a criterion to find out whether a game is a game of skill,” and skill-based games are protected under Articles 14 and 19(1)(g) of the Union Constitution which guarantee the fundamental rights of equality and free trade.
On August 3 last year, the High Court of Madras quashed Part II of the Tamil Nadu Gaming and Police Laws (Amendment) Act of 2021 which contained a blanket ban on online gaming for prizes as ultra vires of the constitution. According to the court, the amendment had failed to observe the principle of proportionality which required the level of intrusiveness of measures to correspond to the aims sought. The bench also observed that the ban was capricious, irrational, and excessive.
Unfazed by these legal developments, the Tamil Nadu ruling class is still in hot pursuit of a total online gaming ban that would supposedly solve all gambling related issues with a single blow. In December, the current DMK government appealed before the Supreme Court the decision of the Madras HC to strike down the gaming ban that was adopted by the previous AIADMK government. While waiting for the Apex Court ruling, leaders of the two parties keep duelling in the state’s Legislative Assembly over who has done more to ban gaming.
For a Few Votes More
Even if the blanket bans on online gaming were not unconstitutional and were able to survive court scrutiny, their ability to achieve the aim to protect the public from the dangers and risks associated with gambling and betting is doubtful. It seems that the whole activity around loudly announcing and implementing these bans is caused by politicians fighting for more votes.
While bans are still in force, as the Karnataka example has shown, a lot of legitimate homegrown skill gaming enterprises geo-block their platforms to residents of the banning state. Then, the emptied niche is quickly filled by offshore gambling and betting sites with not all of them having a proper international license.
Thus, there is no change for gamers prone to addiction, except that they are exposed to more risk. As Felicia Wijkander, Chief Editor at India’s biggest casino comparison site SevenJackpots exemplifies it, “We all know that an alcoholic or drug addict won’t stop simply due to alcohol or drugs being illegal. Instead, they might seek out alternatives, many of which lead them further down the addictive rabbit hole, into a world of crime, or worse.”
The reason behind all these failed bans is because “They bring in votes. Especially women’s votes,” Felicia explains. “While Indian men historically have been the “bread-bringer” of the family, they also have the power to bring a family to its peril if their hard-earned money were to go to alcohol or gambling instead of bringing food and shelter to their family. It’s, therefore, low-hanging fruit for governments closing in on election day to state that they’ll “solve” that home-wrecking problem by banning gambling.”
Gaming Regulation can Target the Problems Themselves
On the other hand, a comprehensive regulation including in its ambit all forms of online gaming, casino platforms and online lottery in India can accurately target the problems related to online gaming and bring associated social costs to acceptable levels, while keeping intact the potential of the country’s burgeoning gaming industry to generate revenue and create jobs.
There are more than enough examples around the world that sensible responsible gaming rules adopted on a national level can effectively shield gamers and bettors from risks of addictions and mental health issues, unsustainable financial losses and sinking in debt, as well as from fraud and odds tampering by ill-faith and unlicensed operators.
Besides customer protection, gaming regulation would also mean the creation of substantial new sources of tax revenues and these can be used to strengthen the Covid-riden economy, but also to fund welfare projects and mental health support programs for gamers.
