Andhra’s Gaming Law: A Setback to Liberty and Human Agency?

While Andhra Pradesh’s blanket ban on all games played for money seems well-intentioned at the outset, it violates constitutional protections and imposes the government’s morality on the people, writes SRI HARSHA KANDUKURI.

The Andhra Pradesh Assembly recently passed the AP Gaming (Amendment) Bill, 2020 replacing the ordinance promulgated in September 2020. This amendment to the AP Gaming Act, 1974 was carried out to make ‘online gaming, online gambling and online betting an offence’ in the state.

The Chief Minister of AP had written to the Union Minister for Communications and Information Technology earlier asking him to ban 132 websites that deal with online gaming and betting in the state of AP.

There is an increasing trend of banning online games played for money.

Though the intention of the Government was to control the youth from getting ‘involved in vices like gambling and betting’, the bill has taken an extreme step of banning the online games played for money.

In 2017, the state of Telangana passed an amendment to the Telangana Gaming Act of 1974 (which was copied by the AP Government fully barring a few technicalities). The state of Tamil Nadu has also recently promulgated an ordinance in direction of curbing online betting and gambling.

Ban on online gaming is an imposition of state morality

Though the intention of the Government was to control the youth from getting ‘involved in vices like gambling and betting’, the bill has taken an extreme step of banning the online games played for money. The definition of ‘gaming’ now includes ‘playing online games for winning money or any other stakes’.

 Gambling and betting were already prohibited and were offences under the previous law as well. But, the bill fails to differentiate between the online games played for money but requiring skill and talent (games of skill) and gambling and betting which are based on pure ‘luck’ or ‘chance’.

The change in the definition of gaming coupled with taking away the protection previously afforded to games of skill will hamper the playing of legitimate games of skill where there is a fee for playing the game and winners are rewarded with cash. The amendment makes an online quiz, a game of chess, and memory games, where participants are required to pay a fee for participation and are rewarded money for winning the same as indulging in betting or gambling.

This measure taken by the Government to control even legitimate gaming activities amounts to a paternalistic act–the State decides which games can be played and which cannot.

 Gambling and betting were already prohibited and were offences under the previous law as well. But, the bill fails to differentiate between the online games played for money but requiring skill and talent (games of skill) and gambling and betting which are based on pure ‘luck’ or ‘chance’. 

The idea of Limited Government is vitiated here for the Government is indulging in the business of deciding which games are good for citizens and which are not.

There is no denying that many people are financially and emotionally affected by online games and betting.

If curbing financial loss is the main motive behind this move, trading in stock markets can appear as gambling as well.

It can also be argued that the games are banned for moral reasons but if it is immoral to play few games, it should be irrelevant if they are played for money or not.

However, only games played for stakes are banned under the provision.

The idea of Limited Government is vitiated here for the Government is indulging in the business of deciding which games are good for citizens and which are not. 

It is not the place of the state to show paternalism and completely ban the games of skill played for money because few individuals lose money in the process.

Gaming cannot be viewed as a mere activity for entertainment. Many make careers out of gaming and it is a source of revenue. The Gaming (Amendment) Bill takes away the liberty of the citizens to play the game of their choice (if it is a game of skill).

In a democracy, the Government cannot impose its morality and dictate that all games (irrespective of whether skill is involved or not) played for stakes be banned. If the Government fails to acknowledge the notion that man is responsible for his own welfare and decision-making, then it inevitably doubts the very agency of human beings that is the basis of a free and liberal society.

It is not the place of the state to show paternalism and completely ban the games of skill played for money because few individuals lose money in the process. 

Games of skill are protected by the Constitution

It is very strange that the Government has ignored the binding precedents of the Supreme Court of India and the AP High Court by bringing games of skill into the ambit of gambling or betting.

The Supreme Court in many cases held that the games of skill are protected under the fundamental right to practice any profession or to carry on any occupation, trade, or business (Article 19(1)(g) of the Constitution of India).

In 1996, the Supreme Court had an opportunity to decide whether placing bets on horse races would amount to prohibited ‘gaming’ under the Police Act and Gaming Act or if it is a ‘game of skill’ which is protected under law.

If the Government fails to acknowledge the notion that man is responsible for his own welfare and decision-making, then it inevitably doubts the very agency of human beings that is the basis of a free and liberal society.

The Court concluded that to place bets on horse races, one should have skills in assessing the horses, their strengths and stamina, the competency of Jockeys and their training levels, which is a matter of skill and talent and hence held that betting on horse races is a game of skill protected under law.

A similar question of whether playing rummy (13 cards game) was a ‘game of skill’ was decided by the Supreme Court of India. The Court held that “The game of Rummy is not a game entirely of chance, like the ‘three-card’ game…. The ‘three card’ game which goes under different names such a ‘flush’, ‘brag’ etc. is a game of pure chance. Rummy, on the other hand, requires a certain amount of skill because the fall of the cards has to be memorised and the building up of Rummy requires considerable skill in holding and discarding cards. We cannot, therefore, say that the game of Rummy is a game of entire chance.”

This dictum was followed by many High Courts including the AP High Court. It is unfortunate that the said letter written to the Union IT minister mentions many Rummy websites as well.

The AP Government lack of differentiation between the games of skill and betting or gambling can negatively impact the growing gaming industry. 

It is also worth noting that fantasy games such as Dream11 have survived challenges in the Rajasthan and Bombay High Courts because they are viewed as games of skill.

The AP Government lack of differentiation between the games of skill and betting or gambling can negatively impact the growing gaming industry.

By definition, even games like Dream11 (which is title sponsor of IPL) and rummycircle.com come under the definition of ‘gaming’ under the Act and are liable to be banned as per the recent amendment. For reasons unknown, the Government did not take any action against them but only initiated action against other lesser-known websites.

Government needs to reconsider arbitrary ban on online games

In 2018, the Law Commission of India published a report on ‘Legal Framework: Gambling and Sports Betting including in Cricket in India’. It recommended that betting and gambling activities be regulated by law in India instead of being completely banned.

The Commission was of opinion that, as it is impossible to completely ban these activities, it is better to regulate them, eliminate the black market, and increase the revenue of the state. It also opined that by regulating those activities, it is possible to prevent minors and vulnerable citizens from indulging in them as the state can see to it that the people are not defrauded.

The Government has not only curtailed the liberty of the firms to engage in the gaming business by banning legitimate games of skill, but also the choice of a reasonable man, who has all the resources to play for entertainment or money.

In 2018, the Law Commission of India published a report on ‘Legal Framework: Gambling and Sports Betting including in Cricket in India’. It recommended that betting and gambling activities be regulated by law in India instead of being completely banned. 

The Government cannot blindly assume that each person cannot act rationally and save themselves from falling into a trap of addiction. If the intention is to protect the youth or people from lower-income backgrounds, the Government can prescribe the amount which a person can stake per day, week, or month depending upon their income levels.

As against this, a complete ban on games of skill by making participation in them an offence is an extreme and disproportional step to achieve the objective of protecting the vulnerable and weaker sections of the society.

The article was originally published in The Leaflet.

(Sri Harsha Kandukuri studied law at the Azim Premji University. The views are personal.)