[Achal Mittal is a third year law student at National Law University, Jodhpur]
Gambling primarily refers to gambling activities taking place in physical premises, defined as “gaming or common gaming houses”.[1] Gambling activities have enjoyed an enormous popularity amongst Indians. A 2011 report by KPMG has estimated India’s overall gaming market to be worth Rs. 2, 50,000 crores or $60 billion,[2] which amounts to around 3.5% of India’s Gross Domestic Product. Perhaps, a majority of these earnings are unaccounted. Despite the staggering amount of revenue that gambling and betting have generated and its popularity, the Indian laws have been unfavorable for any games of chance and probability ever since the advent of the British rules. Even today, pre-independence statutes such as the Public Gambling Act, 1867 prohibit any game based on chance or probability except lotteries.[3] It must be noted that while the United Kingdom (“UK”) has changed its gambling policy in light of the changing societal norms and now allows almost all forms of gambling under the Gambling Act, 2005, India has continued the erstwhile British policy of banning gaming activities.[4]
However, the gambling legislations provide that the restrictions would not apply to games of “mere skill”.[5] The Supreme Court of India has interpreted the words “mere skill” to include games that are preponderantly of skill and have laid down that:
(i) The competitions where success depends on a substantial degree of skill will not fall into the category of ‘gambling’[6];
(ii) Despite there being an element of chance, if a game were preponderantly a game of skill, it would nevertheless be a game of “mere skill.”[7] Whether a game is of chance or skill is a question of fact to be decided on the facts and circumstances of each case.[8]
In K R Lakshmanan v. State of Tamil Nadu, the Supreme Court held that betting on horse-racing was a game of skill since factors like fitness, and skill of the horse, as well as the jockey, could be objectively assessed by a person placing a bet.[9]
Now when we talk about sports such as cricket and football, they should fall within the ambit of skill games because these games require extensive training, practice, expertise, and skills in the players. Taking into consideration factors such as the, inter alia, knowledge, study, practice, ability, hand-eye coordination, speed, stamina, strength, precision and the mental alertness involved in the various facets of these sports, these should fall under the category of game of skill exempted from the definition of “gambling” under Section 12 of Public Gambling Act, 1867.[10] Even the reports of Lodha Committee and Mudgal Committee noted that legalizing betting in a similar manner to the UK would benefit the game of cricket as well as the Indian economy in the long run. They also gave an example of France where the money coming from betting was used in the development of football by financing them through that money which eventually made France the winners of the 2018 World cup.[11] Moreover while discussing the 2013 Indian Premier League Spot fixing fiasco, Lodha committee suggested that regulated betting should be permitted to control the menace of match-fixing.[12]
The gambling legislations were enacted when digital media and internet were uncommon and their reach was not as far as it is today. These deal with gambling in the context of a physical enclosure termed as “common gaming houses.”[13] Therefore, when they are read in the context of online and digital gambling, their interpretation and applicability become complex. As of now, there is no specific law preventing someone from placing an online bet. The trend is, however, changing with Sikkim being the first Indian state to legalize internet gambling, which has, in turn, increased the tourism there.[14]
Internet gambling is a truly global business. For e.g. http://www.bet365.com is a UK based gambling company, having customers in over 200 countries including India for a combined 4 million registered accounts.[15] The user would generally need a good understanding of the game, along with being updated with the sport. One may also need to take into consideration various factors prior to each round of games, such as playing conditions, venues of the relevant matches, present and recent form of the players including against their respective opponent, weaknesses and other factors such as injuries, form of the team at large, age of the player and so on. These activities hence require skills and therefore fall within the exception of gambling.
We cannot definitively state that we can legally gamble online in India. It just needs to be made sure that we use a site that is reputable and trustworthy and accepts Indian customers. It is not unreasonable to expect that, in the coming year,; the gambling legislation in India will be updated and amended in order to provide a clearer idea of what’s illegal and what’s not. All sports such as boxing, cricket, football, and tennis inherently require skills; therefore, betting in these sports should be made expressly legal by the government or the court as was done in the case of horse riding.
To conclude, betting on online platforms should be legalized because predicting the results of these sports requires many skills, and it also does not have any effect on the gameplay and essence of the sport.
[1] Section 1, Public Gambling Act, 1867.
[2] KPMG, Online Gaming: A Gamble or Sure Bet, http://www.kpmg.com/Global/en/IssuesAndInsights/ArticlesPublications/Documents/Online-gaming-A-gamble-or-a-sure-bet.pdf; JAY SAYTA, Legality of poker and other games of skill: a critical analysis of India’s gaming laws, 5 NUJS L. Rev. (2012).
[3] Public Gambling Act, 1867.
[4] The Gambling Act, 2005.
[5] Supra Note 3.
[6] Dr. K.R. Lakshmanan v. State of Tamil Nadu, AIR 1996 SC 1153; R. M. D. Chamarbaugwalla v. Union of India, AIR 1968 SC 825; State of Andhra Pradesh v. K. Satyanarayana & Ors., (1996) 2 SCC 226.
[7] State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699.
[8] Manoranjithan Manamyi Mandram v. State of Tamil Nadu, AIR 2005 Mad 261.
[9] Dr. K.R. Lakshmanan v. State of Tamil Nadu, AIR 1996 SC 1153.
[10] Section 12, Public Gambling Act, 1867.
[11] LEGAL FRAMEWORK: GAMBLING AND SPORTS BETTING INCLUDING IN CRICKET IN INDIA, Report 276, Law Commission of India (July 2018), pg. 88.
[12] Id, pg. 108.
[13] The Public Gambling Act, 1867; Bombay Prevention of Gambling Act, 1887; Tamil Nadu Gaming Act, 1930.
[14] The Sikkim Casino Games (Control and Tax Rules), 2002.
[15] Bet365 Sports Review, https://www.bettingsite.org/reviews/bet365/.
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