Should Gambling be decriminalized?

The law is reason free from passion ~ Aristotle

Life is a gamble at terrible odds, if it were a bet, you would not take it. ~ Tom Stoppard

The Law Commission of India recently has invited suggestions from the public on recommendations for legalizing betting and gambling. This is a direct outcome of the Justice Mudgal Report on the IPL betting scam which was investigated by the Mudgal Committee and it’s report which was placed before the Supreme Court was damming enough for the Supreme Court to observe in BCCI vs Cricket Association of Bihar SC 2016 that perhaps all things considered, the Law Commission of India should study the possibility of legalizing gambling and betting. In this context, it is worth examining the gambling laws in our country.  

If we look at our legislation, the Gambling laws in India per se are at least 150 years old. The Public Gambling Act of 1867, a Central piece of legislation has not undergone a single amendment since the time of Independence. Gambling of course is a State subject (Entry 34 of the State List), which means that every State has its own version of the Central Act or has enacted its own State Legislation. Betting and Gambling in today’s day and age are parallel industries into themselves which are estimated at upwards of 70 billion dollars in India. Gambling exists in both its online and offline avatar. With the proliferation of mobile phones, it has become easy to run a betting or gambling syndicate online. It is a sport unto itself which has permeated all strata of society and continues to grow unabated attracting an ageless audience.   

Since the dawn of civilization, gambling as a form of sport or amusement has existed. If it wasn’t the Pandavas losing Draupadi, Kingdom, et all to the Kauryas in a game of dice, then it was the Greek gods, Hades, Poseidon, and Zeus who were throwing dice for amusement to split the Universe between the three of them. Clearly, the throw of the dice is alluring to both Gods and mortals. So how then do we legalize one of the oldest sports in a country like ours?

Though gambling today is largely associated with cricket, there are a number of reasons why both amateurs and professionals are drawn towards betting in cricket. The online avatar of cricket that exists as a fantasy sport allows players to assemble their own team, play against a side of their choice while also placing bets along the way. The prize money or sweepstakes is easily a few lacs for even a novice to earn.  Other games particularly card games are equally if not more popular since the card games are easier to learn and can be played with a lower degree of skill. The Gambling Acts in various States and the Centre exempt games of skill from the purview of the gambling legislation. The Supreme Court in fact drew a distinction between games of chance and games of skill while examining the legality of a popular card game such as Rummy. While ruling that the card game Rummy was a game of skill and fell outside the ambit of the Public Gambling Act 1867, the Supreme Court in State of AP v K Satyanaraya 1968 observed “Rummy, on the other hand, requires certain amount of skill because the fall of the cards has to be memorized 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. It is mainly and preponderantly a game of skill. The chance in Rummy is of the same character as the chance in a deal at a game of bridge”. It must be remembered during this time that in almost all the legislations both Central and State that exists presently, exceptions are made for games of skill. Playing a game of skill, therefore would not be considered as gambling. This statutory exception exists in all Gambling statutes except that of Assam and Odisha. Diving deeper into the meaning of gambling the Supreme Court in Dr. K.R Lakshmanan vs. State of Tamil Nadu 1996 while deliberating the legality of horse racing stated “Gambling in a nutshell is payment of a price for a chance to win a prize. Games may be of chance, or of skill or of skill and chance combined. A game of chance is determined entirely or in part by lot or mere luck. The throw of the dice, the turning of the wheel, the shuffling of the cards, are all modes of chance. In these games the result is wholly uncertain and doubtful… A game of skill, on the other hand - although the element of chance necessarily cannot be entirely eliminated - is one in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player.”   It went on to hold that in games such as Golf, Chess, skill dominated over the element of chance and therefore such games including horse racing are not gambling and therefore were allowed to be permitted as exceptions to the legislation.  

This much is therefore clear that certain games which are games of skill are outside the scope of any gambling legislation and no prosecution lies for playing such games. The problem lies with the fact that the legislation criminalizes the act of gaming or gambling as a whole without drawing any distinction in today’s day and age as to what actually constitutes gambling. The Public Gambling Act of 1867 does not carry any definition of Gambling in the first place. A person charged with gambling has to instead prove that he was gambling, as opposed to the prosecution proving its case as criminal jurisprudence would dictate. The supposition of gambling is heavily loaded against such person found in what the police consider gambling houses. A pre-independence piece of legislation it was enacted during a time when people used to wager on the outcome of animals fighting in the streets. There were hardly any games of skill which could be classified as exceptions, it was left to the courts to judge each game and sport in it’s own light examining the intricacies and the human and technical elements before it judged them as games of skill thereby saving the sport and it’s enthusiasts from possible prosecution. This 150 year old legislation is still in force today allowing the police to enter any premises which it suspects to be a gambling house, and to arrest people, search the place, confiscate and destroy such elements of gambling that it deems fit. To allow such an ancient law to remain in force for 150 years without any amendment to reflect the modern reality is a travesty of it’s own. But it is exactly this kind of archaic and meaningless legislation when left in the hands of law enforcement authorities can cause havoc. Except for the West Bengal Gambling and Prize Competitions Act all other State legislations have classified the offence of gambling as Cognizable.

It doesn’t come as a surprise then that the police are today freely conducting raids across States on people who are alleged to be found gambling. A simple pack of cards at a friend’s place during Diwali or at a club is sufficient to get you arrested since the Public Gambling Act presumes that such cards, dice, gaming-tables, cloths, boards, are all instruments of gaming. Clearly then playing ludo, checkers, snake and ladders or simply put “taash” is now dangerous to health, if we are to believe this 150 year old relic of a legislation. Various clubs and Associations have in the recent times filed writs before the High Court when their patrons were caught allegedly playing poker in their game rooms. The Police Act of most States also allows for the police to conduct searches, arrest, detention and various other measures to counter gambling. As expected the police legislation is also as old as most of the gambling legislations.  

The rest of the world of course has long since moved on realizing the benefits of adopting gambling and betting as a perfectly legal activity taxing it and enjoying the tremendous revenue that it brings in. Is it any surprise then that neon lights of Macau, Las Vegas, Malta, San Jose, Monte Carlo, Reno, and even smaller places like the Philippines and Singapore draw in people by the hordes as gambling destinations. If India as a country can shed the hypocrisy surrounding such “sin industries” as gambling, then Sikkim and Goa are excellent examples of growth in GDP brought in by their casinos. The Sikkim On-line Gaming Regulation Rules 2009 which followed the Sikkim On-Line Gaming Act of 2008 makes it legal to play blackjack, roulette, keno, baccarat, bingo, and poker, rummy, teen-patti, to name of few in the casinos of Sikkim as well as online. To say that a small state like Sikkim has profited from this forward-thinking legislation is an understatement. Sikkim has a population of a little over 6 lacs enjoys revenues of 15 crs from the 2 operational casinos in 5 star hotels that have been granted a license. Another 3 companies have also been granted a license under the generous and fast track application procedure put in place. The net effect of this legislation? Tourism is booming. From a trickle of 4-5 lacs, Sikkim now has 12 lac tourists, and is expecting an inflow of 50 lacs tourists annually.   Goa, by comparison is already part of the 200 crs club when it comes to earning from taxes from gambling. With 5 offshore casinos and 9 on shore casinos, Goa today is the poor man’s Las Vegas made possible by the Goa Public Gambling Act 2012.  Nagaland (a state very rarely visited) recently passed the Nagland Prohibition of Gambling and Promotion and Regulation of Online Games of Skill Act 2015. One of the few legislations to define gambling it makes it simplistically clear that “Gambling means and includes wagering or betting on games of chance but does not include betting or wagering on games of skill”. Till date it is the only legislation that lists games for which one can secure a gambling license under the Act.  A modern piece of legislation it allows gambling in both modern fantasy games as well as the traditional card games. Meghalaya is also expected to follow suite with a gambling legislation of its own. 

Not that you need to be physically present in any state to enjoy gambling. Today’s internet age allows you to gamble from any place, anytime, anywhere, all you need is a mobile phone. There are ample international online betting sites, offering the best odds in anything from sports to election outcomes. All such global betting sites offer free accessibility, quick and easy settlement, anonymity and privacy, covering a variety of markets making it easy to play and win. Not only that they also offer tutorials, books, expert picks and FAQs on learning the ropes of betting. In this world there exist professional players who have made a fortune out of card games simply by dint of their skill and technique.  With such reach and ease offered by today’s internet, the debate on betting and gambling is clearly moral sermonizing. 

Betting in cricket is, of course, today’s favorite past time. The Justice Mudgal IPL Probe Committee set up by the Supreme Court to investigate the allegations of betting in the IPL, found that the then BCCI Chairman and Chennai Super Kings co-owner was placing bets throughout the series, at the time even against his own team. Raj Kundra, Shilpa Shetty owner of Rajasthan Royals were among the other people who were subsequently banned along with their teams for a period of 2 years from the IPL. S.Sreesanth, Ankeet Chavan, Ajit Chandila, Amit Singh, are still serving a life ban upon being found guilty of spot-fixing during a live match. Clearly, both players and punters then make up the gambling spectrum.        

Is it still worth debating whether gambling should be allowed? Should we continue to pretend virtue while practicing vice, or should we just bite the bullet and let the consequences of individuals and their decisions govern? The Western World has a name for gambling that is regulated: Responsible gaming. Ensuring that underage gambling is not conducted, checking fraudulent and criminal behavior, protecting information and privacy, ensuring a strict code of conduct, responsible marketing, transparent, safe, secure gaming environment are some of the ways in which to promote responsible gaming.  

If the government of the day can muster the political will and bypass societal hypocrisy then it is possible to finally accept the fact that gambling in all forms is a real and present norm and not an exception that needs to be banned via legislation. The sign of any mature democracy is to accept the change in societal norms reflecting in the change in legislation. Crime rates or protecting the welfare of the society and family have nothing to do with gambling. It has existed for centuries and will continue to exist. Men and women are equal participants and enthusiasts making this a completely unbiased sport and a gender neutral pastime. Gambling like any other commercial activity has to do with human nature to play the odds and win. Modern legislation by decriminalizing gambling can ensure that through licensing and regulation that it in fact reaps the benefit of having such a legislation in place, instead of a paper law, that neither society nor the individual heeds. Once it ceases to be a taboo and becomes a legal activity like any other form of trade and commerce, the actual purpose of such legislation will be achieved.            

 

Published in Criminal Law
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