Whatever may be the intentions of the Government, pure, moralistic and ethical, the online gaming law will be debated in the courts of law. Inevitably, the final decision will be the Supreme Court’s. As the law legally winds its way upwards, or reaches the apex court straightaway, two points of contention are likely to emerge. Experts contend that these relate to whether the Centre has the powers to enact an omnibus law on the subject, and how the courts will react to a law that negates its earlier rulings and precedents. It will be a clash between the provisions of the Constitution, legal nuances about what constitutes betting and gambling.
According to the Constitution, gambling is a state subject, and the Centre should not interfere in it. Indeed, during the framing of the Constitution, BR Ambedkar took the position that putting it in the Directive principles, in effect, legalises gambling. It allows the States to enact laws to govern and encourage gambling. If it had been left out completely, the onus would logically have been on the Centre to decide what to do with it. In the past, the Supreme Court has created precise and detailed distinction between the central and state subjects, and refused to accept laws that blur it. Unless there were reasonable and exceptional circumstances.
This explains why the Centre took a moral tone to justify the ban on money-based online games. The various ministers and bureaucrats maintained that online gambling and betting impacted the health of the nation and society. Lakhs of people lost their life savings, and many were forced to commit suicides. In one instance, a teenager blew up the money meant for his mother’s cancer treatment, and later killed himself when he lost the money. It was in the overall public interest to ban such gambling activities. It is a different matter whether the courts will accept this logic.
Over the past few decades, the lower courts and Supreme Court have set precedents about what constitutes gambling. One of the prime distinctions they fleshed out related to games of chance versus games of skill. The former were clear cases of gambling because winning and losing were random, and based on luck and destiny. Thus, chance played a huge role in card games like teen patti. But not in rummy or poker, which were games of skill. The player can influence a win or loss based on her intelligence and thinking. In a seminal case, even horse racing was deemed to be a game of skill because the bettor needs to think of factors like the skills of the horses and jockeys. Over time, even fantasy cricket was deemed to be a game of skill.
The recent online gaming law makes no such distinction. It deems all money-based online games as gambling and, hence, illegal. Obviously, this thinking clashes with the past court rulings. However, the Centre and states have the right to enact laws, which overrule court orders. In fact, many news laws are forced into existence because of the positions taken by the courts. The Centre can argue that the same is true in this case. Since the Supreme Court allowed games of skill, it was the Centre’s desire to negate it through a new law, especially given the grave circumstances.