TMI Blog2021 (8) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... ding statute passes muster as the object of the legislation is to arrest the addiction of gambling and ensure that citizens do not rush to their doom by falling prey to such addiction. HELD THAT:- At the end of the day, a balance has to be struck between the extent to which the State can impose restrictions to protect a class or certain classes of persons and the reasonableness of such restrictions qua the ordinary individual who may resist the same, whether or not the statutory measure is intended to protect such individual - Oftentimes, when the State takes a paternalistic attitude, it seeks to legally regulate private life. This brings about a conflict between both the authority and the desirability on the part of the State to legislate in areas where it perceives that the individual in general or certain classes of individuals require protection and the private rights of the individual and every citizen's freedom of choice. State paternalism, by and large, is understood to mean the phenomenon in which the State acts as the guardian and protector of its citizens or a class or classes of citizens who are perceived to be vulnerable in certain situations or are thought to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctionaries, gambling is equated with gaming and the activity involves chance to such a predominant extent that the element of skill that may also be involved cannot control the outcome. A game of skill on the other hand, may not necessarily be such an activity where skill must always prevail; however, it would suffice for an activity to be regarded as a game of skill if, ordinarily, the exercise of skill can control the chance element involved in the activity such that the better skilled would prevail more often than not. Since the discussion here has to be confined to the validity of the impugned Amending Act, the several tests enunciated in the authoritative judicial pronouncements brought to bear on the subject by the parties need to be understood and applied. For a start, K.R. Lakshmanan instructs that when a game of skill is distinct from a game of chance, on the preponderance of the skill element involved, the activity would be protected by Article 19(1)(g) of the Constitution and competitions involving games of skill have to be regarded as business activities. The amended Act encompasses within its sweep all sporting activities, if played for a prize, whether between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country to be a game of skill, but the evidence in such regard as apparent from the American case even convinced the Law Commission to accept the poker as a game of skill in its 276th Report. The legislation assailed herein has to be regarded as something done by the legislature capriciously, irrationally and without adequate determining principle such that it is excessive and disproportionate, to borrow the words of Shayara Bano [ 2017 (9) TMI 1302 - SUPREME COURT] . The doctrine of severability would also not apply in the present case as the concept of the expanded meaning of gaming runs through the entirety of the Amending Act; so much so that it cannot be gauged with any element of certainty as to which part of the amendments the legislature would have intended to be retained as valid even if the legislature was aware that some parts thereof were invalid. In fine, it must be said that the Amending Act in its application to the Act of 1930 is so disproportionate to the objects that it sets out to achieve that no meaningful part of it-even a sliver-can be reasonably allowed to be retained or upheld as valid. The impugned Part II of the Tamil Nadu Gaming and Police Laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l legislatures could legislate upon. 3. The Amending Act has been challenged, not only on the ground that it turns the original statute on its head, but also in its expansive definition of a word that has been judicially interpreted and, thus, the seemingly blatant attempt to bypass the law declared by courts, including the Supreme Court, by the legal fiction created in the definition. The challenge here is not so much to the legislative competence, but to the extent that a law may be made in respect of a field or allied fields indicated in an Entry in the State List. In effect, the Amending Act, or the relevant part of the Ordinance that preceded it in 2020, has incorporated certain provisions to enlarge the scope and effect of the Act of 1930. 4. The amended statute prohibits all forms of games being conducted in cyberspace, irrespective of the game involved being a game of mere skill, if such game is played for a wager, bet, money or other stake. Among others, the three major features of the Amending Act appear to be the enlargement of the inclusive definition of the word gaming ; the introduction of Section 3-A in the Act to prohibit wagering or betting in cyberspace (th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creasing evidence of the fact that bucket shops are springing up outside the municipal limits. In order to deal with them effectively and to consolidate the law on gaming and keeping common gaming-houses throughout the province, this Bill extends to the Presidency, with the exception of Madras City, those provisions of the Madras City Police Act, 1888, as amended by the Madras City Police (Amendment) Act, 1929, which deal with bucket shops. It also combines, in the same Bill, the provisions of the Madras City Police Act, 1888, and the Towns Nuisances Act, 1889, which relate to gaming and the keeping of a common gaming-house. 8. The expression bucket shop obviously referred to unauthorised facilities extended in public places for speculating in general and using the funds of unwitting investors. The bucket shop technique involves firms indulging in such activities to profit off their clients. In Britain, the bucket shop would refer to a brokerage house dealing in securities and commodities, where the brokerage house would hold on to a customer's orders rather than execute the same in the hope that it could buy or sell the stock or commodity at a greater profit. 9. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an seven hundred and fifty rupees for a second offence; and (iii) such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees for a third and subsequent offences. The remainder of Section 4 of the 1930 Act pertained to others involved in the prohibited acts of gaming, and also stipulated the punishments for such incidental activities. The horse-racing aspect was included by way of an amendment which was notified much later. Horse-racing has been held by the Supreme Court to be a game of skill. However, the other activities indicated in sub-clauses (ii) to (v) of Section 4(1)(a) of the 1930 Act are games of pure chance. Residuary sub-clause (vi) also prohibits any transaction or scheme of wagering or betting where the outcome depends on chance. Thus, the mischief that the original statute sought to address was the betting on games of chance. 10. Section 11 of the 1930 Act, prior to its obliteration and substitution by the Ordinance of November, 2020 and the impugned Act of 2021, read as follows: 11. Saving of games of skill.- Nothing in sections 5 to 10 of this Act shall be held to apply to games of mere skill wherever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bet, money or other stake. 13. Several other words and expressions relevant in the use of computers have been defined by referring to the respective meanings assigned to them in the Information Technology Act, 2000. In addition, the expression cyber cafe has been introduced in various provisions along with computers and related gadgets. The punishments for the offences in Sections 8, 9 and 12 have been enhanced and Section 13-B has been introduced pertaining to offences by companies. The Explanatory Statement for the Ordinance promulgated in November, 2020 makes out as follows: Gaming by means of cards, dice etc., in the form of betting or wagering has been banned in the cities of Chennai, Madurai, Coimbatore, Salem, Tiruchirappalli and Tirunelveli by the Chennai City Police Act, 1888 (Tamil Nadu Act III of 1888) read with Tamil Nadu Act 32 of 1987 and Tamil Nadu Act 51 of 1997 and in the rest of the State by the Tamil Nadu Gaming Act, 1930 (Tamil Nadu Act III of 1930). Playing games like Rummy, Poker etc., using computers or mobile phones, for money or other stakes, which are addictive in nature, have developed manifold, in the recent times. As a result, innocent people ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made to the existing statute: by including all virtual games in the fold of gaming; by specifically naming two card games; and, by excluding the existing exemptions. These petitioners submit that the amendments introduced are liable to be struck down on the grounds of lack of competence and unreasonableness. They also maintain that the amendments result in manifest arbitrariness as the prohibition introduced thereby is blanket, disproportionate and excessive. They say that in codifying exclusions, the State is more in the game of populism which is far removed from the reality. 17. The rummy companies refer to excessive State policing and submit that the apprehension that citizens indulging in the activity which is sought to be prohibited would create an uncontrollable or chaotic jungle that the State cannot control, is a scare argument and the prohibition based on some imaginary apprehension cannot be upheld. They emphasise that there is a space for choice in the world and Part-III of the Constitution in this country merely recognises such rights as inhere in any human. 18. According to the first lot of petitioners, it matters little if one applies the stake or non-stake t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, several of the provisions amended by the impugned Act are placed and the perceived anomalies therein demonstrated on the basis of the skill versus chance test. In particular, they refer to Sections 8 and 9 of the Act and the general philosophy of the impugned amendment that, regardless of a game or activity being wholly dependent on skill, if there is any bet or wager involved, it would constitute an offence within the meaning of the amended Act. 22. The rummy petitioners first refer to the two Chamarbaugwala cases decided by a Constitution Bench and the distinction brought out therein between a game of skill and a game of chance. In the first of the two cases cited, reported at AIR 1957 SC 699 (State of Bombay v. R.M.D. Chamarbaugwala), the issue involved was the rationale of declining the renewal of a licence to conduct a prize competition. The contention of the State before the Supreme Court was that there could be no business in promoting a prize competition and the violation of the writ petitioners' rights under Article 19(1)(g) of the Constitution did not arise. In the discussion on the validity of the Amending Act of 1952 that was before the Supreme Court, such co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applies to competitions which involve substantial skill and are not in the nature of gambling; and (2) if it does, whether the provisions of Sections 4 and 5 and Rules 11 and 12 which are, ex concessi void, as regards such competitions, can on the principle of severability be enforced against competitions which are in the nature of gambling. At paragraph 10 of the report, the Supreme Court recorded the State's submission that the impugned Act in that case was relatable to Entry-34 in the State List. However, on an overall appreciation of the legislation, the court observed that by virtue of the declared object (of the Act) and the wording of the statute, we are of opinion that the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend to any substantial degree on skill. The principle is summarised at paragraph 23 of the report: 23. Applying these principles to the present Act, it will not be questioned that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend, form two distinct and separate categories. The difference between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such judgment reported at (1996) 2 SCC 226 (Dr. K.R. Lakshmanan v. State of Tamil Nadu) rendered by a three-member Bench. Paragraph 2 of the report sets out the questions that arose for consideration. These questions range from what amounted to gambling, to the meaning of the expression mere skill , to whether horse-racing was a game of chance or a game of mere skill, and whether wagering or betting on horse-races amounted to gaming as defined in the relevant statute. The court referred to the definition of gambling from Black's Law Dictionary (6th Ed) and opined that gambling amounted to the payment of a price for a chance to win a prize. The court then referred to a game of chance being one that is determined entirely or in part by lot or by mere luck, like the throw of the dice, the turning of the wheel and the shuffling of the cards. The judgment reasoned that a game of skill may necessarily involve an element of chance, but the success therein would depend principally upon the superior knowledge, training, attention, experience and adroitness of the player. By way of example, the court observed that golf, chess and even rummy were considered to be games of ski ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;wagering' or 'betting' by a punter with the Club. According to him, a punter bets or wagers with the totalizator or the bookmaker and not with the Club. It is not necessary for us to go into this question. Even if there is wagering or betting with the Club it is on a game of mere skill and as such it would not be 'gaming' under the two Acts. The court concluded, at paragraph 51 of the report, that horse-racing was neither gaming nor gambling as defined and envisaged under the statutory provisions and, as such, held that the penal provisions of the statute would not be applicable to horse-racing, which was a game of skill. 26. A single Bench judgment of the Andhra Pradesh High Court reported at (1998) 5 ALD 126 (Executive Club Formed by Lalitha Real Estates Pvt. Ltd. v. State of Andhra Pradesh) has been brought to bear on what would amount to a game of skill to which the penal provisions of the relevant statute in Andhra Pradesh would not apply. Rummy was held to be a game of skill on the basis of the dicta in K. Satyanarayana and K.R. Lakshmanan and the concept of gambling in the Chamarbaugwala cases. 27. For similar purpose, a single Bench judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 80 of the report. While the court accepted that certain activities may be perceived as immoral per se, like gambling and prostitution, it raised a doubt regarding the present understanding of gambling. The court observed that activities which were once immoral may no longer be regarded as such, as societal norms keep changing. The court also held that any legislation by which the State seeks to impose its notion of morality or exercise social control must also pass the muster of constitutional propriety. 31. In the next case cited, reported at (2008) 3 SCC 1 (Anuj Garg v. Hotel Association of India), the Supreme Court referred to the parens patriae power of the State and observed that the subject-matter of the exercise of such power has to be assessed on the twin counts of its necessity and the trade-off or adverse impact, if any. The court also left it open for a legislation brought under such authority to be subjected to a constitutional challenge on the ground of the right to privacy. The Supreme Court cautioned that majoritarian impulses rooted in moralistic tradition ... (should) not impinge upon individual autonomy. At paragraph 50 of the report, the tests were formula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest of the general public, the exercise that is required to be undertaken is to balance the fundamental right to carry on occupation under Article 19(1)(g) of the Constitution on the one hand and the restrictions imposed on the other. It is this balancing act that is described as the doctrine of proportionality in such context and the four facets thereof are indicated as follows: 60. ... (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation ( proportionality stricto sensu or balancing ) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right. 34. The petitioners next rely on a judgment reported at (2019) 1 SCC 1 (K.S. Puttaswamy v. Union of India) where the Constitution Bench considered whether the right to privacy was guaranteed under Part-III of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court describes manifest arbitrariness in the context of a statute to be something done by the legislature capriciously, irrationally and without adequate determining principle such that it is excessive and disproportionate. The court went on to emphasise that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14. 36. A more recent judgment on virtual currency reported at (2020) 10 SCC 274 (Internet and Mobile Association of India v. Reserve Bank of India) has been cited by the petitioners for the discussion therein on the challenge to the impugned Reserve Bank circular on the ground of Article 19(1)(g) of the Constitution and the doctrine of proportionality. At paragraph 193 of the report, the court observed that the imposition of any restriction on the exercise of a fundamental right may be in the form of control or prohibition; but when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may be in public interest lies heavily upon the State. The court referred to a judgment reported at (1969) 1 SCC 853 (Mohammed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... integrity of India or public order, decency or morality etc. the onus of showing that restriction is unreasonable would shift back to the petitioner. Where the restriction on its face appears to be unreasonable, nothing more would be required to substantiate the plea of unreasonability. Thus the onus of proof in such like cases is an ongoing shifting process to be consciously observed by the Court called upon to decide the constitutional validity of a legislation by reference to Article 19 of the Constitution. The questions: (i) whether the right claimed is a fundamental right, (ii) whether the restriction is one contemplated by any of clauses (2) to (6) of Article 19, and (iii) whether the restriction is reasonable or unreasonable, are all questions which shall have to be decided by keeping in view the substance of the legislation and not by being beguiled by the mere appearance of the legislation. 38. The petitioners also refer to a judgment reported at (2003) 7 SCC 309 (B.P. Sharma v. Union of India) for the discussion therein as to what would be reasonable restrictions within the meaning of Article 19(6) of the Constitution to curtail the rights under Article 19, particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther not involved or involved to the most minimal extent. These petitioners exhort that the entirety of the field in Entry-34 of Betting and gambling must be understood in such context and it is only the betting involved in gambling which is covered by the field in the Entry and not betting per se. They refer to Entry-36 in the corresponding list in the Act of 1935 and the pre-constitutional connotation of gambling that is deemed to be the basis for the Entry. These petitioners assert that the attempt at widening the definition of gaming, in effect, amounts to the impermissible enlargement of the scope of legislative competence. 42. They refer to the Chamarbaugwala cases where the use of skill has been seen to be permissible as a business activity and entitled to protection under Article 19(1)(g) of the Constitution. They refer to the history of the regulation of gaming and the prohibition in certain areas before copiously referring to the judgment in K.R. Lakshmanan. 43. These petitioners place a judgment reported at AIR 1958 SC 560 (State of Madras v. Gannon Dunkerley and Company) where the construction of Entry-48 in the State List fell for consideration. The Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a Constitution Bench, reported at (2014) 12 SCC 696 (State of Tamil Nadu v. State of Kerala), where it was observed that no provision of law may be enacted contrary to a judicial pronouncement without removing the mischief noticed in the judgment. At paragraph 15 of the report, the Supreme Court laid down the primary test for determining whether an enactment or a provision had been brought in only to nullify a previous judgment: to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together. 49. The third lot of petitioners refers to games like rummy and horse-racing being games of skill and quote several Supreme Court judgments, some noticed before, in such regard. They also rely on a judgment reported at (1996) 7 SCC 637 (Indian Aluminium Company v. State of Kerala) for the principle recognised at sub-paragraphs (8) and (9) of paragraph 56 of the report. In essence, the judgment declares that the legislature cannot overrule, revise or override a judicial decision without changing the underlying conditions such that if those conditions had existed at the time of declaring the law as invalid ... the previous decision would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey claim that the impugned Amending Act is contrary to the dictum in K.R. Lakshmanan and should not be countenanced since it does not address the mischief noticed in K.R. Lakshmanan, but seeks to override the dictum nonetheless. 53. These petitioners say that the effect of the Amending Act runs beyond any game played in cyberspace and amended Section 11 of the Act pertains also to physical forms of games, but to the extent newly introduced Section 3-A of the Act and the other incidental provisions target all games played in cyberspace for stakes, they are colourable and unreasonable exercise of authority, as there can be no distinction between card games, particularly like poker and rummy, being played in physical form or on the internet. 54. These petitioners seek to make a distinction between betting and wagering, though the authorities that they cite in such regard do not necessarily support the same. According to these petitioners, a wager would be between two or more persons involved in the conduct of the activity, whereas betting would be by persons only interested in the outcome of the activity, but not involved in the conduct thereof. They rely on a judgment reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l form where it cannot be regulated with any degree of certainty. Apart from the specific challenge on the grounds of irrationality, unreasonableness and excessive exercise of authority in amending the definition section and introducing Section 3-A in the statute, these petitioners are particularly critical of Section 11 as amended, by which the latitude that was shown to games of skill has been reversed and games of skill have been equated with games of chance without any distinction. Their specific contention in wanting amended Section 11 to be struck down is founded on six grounds: that it seeks to bypass judicial pronouncements that have stood the test of time without tackling the mischief noticed in such judgments; that no guidelines are indicated for protecting the right under Article 19(1)(g) of the Constitution; that it amounts to absolute prohibition which is unwarranted and impermissible; that no attempt is made to restrict or regulate or apply the doctrine of proportionality or find the least intrusive measure to deal with the perceived menace; that it is per se manifestly arbitrary and otherwise vague; and, that it is contrary to the purpose for which the original statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1930 being limited to prohibiting gambling in public space by indulging in pure games of chance and criticises the irrational incorporation of the recent amendments that completely destroy the architecture of the statute. 65. Such petitioners refer to a judgment reported at (Varun Gumber v. Union Territory of Chandigarh) as to what would amount to a game of skill. They refer to Entry-33 in the State List and suggest there is complete confusion in the manner of change brought about by the Amending Act. Such petitioners question the legislative perception that if two persons privately play rummy in an enclosed place it may not disturb public order or cause any nuisance, but if the same two persons play rummy on the internet, it would be criminal, as the impugned legislation makes it out to be. 66. The last line of submission on behalf of the petitioners has been to indicate the algorithms of the card games played on the internet in the country and which platforms were available for any resident in this State to access till the Ordinance came into effect. The emphasis in such regard is on the protective mechanism which is followed to screen the players, obtain and maintain a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State submits that the games like Rummy Circle which are offered by some of the petitioners, have 30 million registered players and about 50,000 new players every day. The State perceives the recent statistics to suggest that the target audience for these games are the young and uneducated as the games offer easy incentives by way of real cash as prizes . The State says that the very nature of the games which have been prohibited is such that an initial amount is deposited by the player following which the player keeps betting with more sums of money depending upon the fall of cards; and, given the addictive tendency that such games prey on, the player tends to raise his stakes in the hope of a bigger win. The State points out that online gambling has been banned in Andhra Pradesh, Telangana and Kerala and stresses on the deleterious effect of gambling. 71. The State contends that the petitioners cannot assert any right under Article 19(g) of the Constitution because the games offered amount to gambling/betting activity despite being a game of skill since it is being played for a financial or other stake . The State maintains that there cannot be any absolute right to practi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lass could include youth and children below the age of 18 and those who are below poverty line and to whom, as a social measure, Central/State Governments provide subsidies to their Jan Dhan Account for sustenance . 76. The State commends the laudable objects that prompted the amendment as indicated in the Explanatory Statement to the Ordinance. The State maintains that all online games are invariably open to manipulation and, as such, no distinction need be made in such regard between games of chance and games of skill. As to the amended Section 11 of the Act, the State perceives that the non-obstante clause therein operates in respect of newly introduced Section 3-A of the Act, which is a substantive provision, and in respect of Sections 5 to 10 thereof which are said to be procedural provisions. It may be said, however, without any hesitation, that not all of the provisions in Sections 5 to 10 of the Amended Act are procedural. At least Sections 8 and 9 make out offences and provide penalties for the commission of such offences. 77. The State then refers to a Full Bench judgment of this court reported in AIR 1927 Mad 583 (Narayana Aiyangar v. K. Vellaichami Ambalam). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.J. Sivani that gaming as defined in the relevant statute included both a game of chance and a game of skill and also a combination of both and that the element of gaming was the prizes or consideration. The court held that for an ordinary person or a novice it was difficult to play a video game with skill and the regulation of such activity by the impugned legislation was in accordance with law. In applying the test of reasonableness, the Supreme Court observed that the broad criterion was whether the law struck a proper balance between social control on the one hand and the right of the individual on the other and whether the restriction was in proportion to the evil and the prevailing conditions at the relevant time. 81. However, what cannot be missed is that the judgment pertained to a law that regulated gaming activity and may not have completely prohibited the same even in a broad medium. Paragraph 36 of the report also included the caveat that if any licence was rejected on any irrelevant ground it was open to the aggrieved party to challenge the same. 82. Two further judgments reported at (2005) 8 SCC 534 (State of Gujarat v. Mirzapur Moti Kureshi Kassab and Others) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on his skill. 86. The State's final submission is by referring to a judgment rendered by this court several months back calling upon the State to take appropriate steps to curb gambling in the light of suicides and other ill-effects resulting therefrom. However, the relevant judgment has not been placed as no mandamus could have been issued to legislate nor can the impugned provisions of the Amending Act be attributed to the court. 87. At the end of the day, a balance has to be struck between the extent to which the State can impose restrictions to protect a class or certain classes of persons and the reasonableness of such restrictions qua the ordinary individual who may resist the same, whether or not the statutory measure is intended to protect such individual. 88. Oftentimes, when the State takes a paternalistic attitude, it seeks to legally regulate private life. This brings about a conflict between both the authority and the desirability on the part of the State to legislate in areas where it perceives that the individual in general or certain classes of individuals require protection and the private rights of the individual and every citizen's freedom of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e paternalism oozing out of the impugned legislation, a brief peek into history and a general discussion on gambling and how it has been judicially interpreted, may be in order. 92. In course of the Constituent Assembly debates, divergent views were expressed when it came to including betting and gambling in the State List. While some members perceived the activities to be so pernicious that they ought not even be included in any List, there were others who also wanted the relevant entry carried over from Entry-36 of the Provisional List in the Government of India Act, 1935 to be deleted, but for completely different reasons. However, Dr. Ambedkar reminded the members that if the field was not included, the States would have no power to legislate over the same as the residuary and what was not specifically provided for in the State List could be understood to fall within the exclusive domain of the Parliament. 93. In ordinary and common parlance, gambling connotes taking a chance. In the usual sense, there is no distinction made between chance and skill or the preponderance of either in an activity which may be seen and understood to amount to gambling. However, betting, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r may bat on a sticky wicket upon rain intervening in the interregnum. However, ordinarily, it is expected that the more skillful would take the unexpected-the chance element-in its stride and the greatest upsets remain etched in our memories because the expected dexterity of the acknowledged skillful was felled by the less-gifted. 97. Gambling and gaming have developed secondary meanings in judicial parlance. Indeed, such words had attained such connotations in the pre-constitutional era that the nomen juris cannot be shrugged off to understand such words to mean or imply anything other than how they have been judicially interpreted. Irrespective of what meanings are ascribed to these words in dictionaries, gambling is equated with gaming and the activity involves chance to such a predominant extent that the element of skill that may also be involved cannot control the outcome. A game of skill on the other hand, may not necessarily be such an activity where skill must always prevail; however, it would suffice for an activity to be regarded as a game of skill if, ordinarily, the exercise of skill can control the chance element involved in the activity such that the better skille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f gambling, when used in the ordinary sense, may not appear so vile to many. There may be a difference of opinion between a person and his neighbour as to what may be perceived to be the constitutional sense of morality, whether in general or in respect of a particular field of activities, but the difference ought only to be in degrees and not poles apart unless the individual sense of morality tinges the perception. Again, the understanding of the constitutional sense of morality may depend on the mores of the time since the Constitution is regarded as a living document and not pegged to the time of its adoption. 101. Since the discussion here has to be confined to the validity of the impugned Amending Act, the several tests enunciated in the authoritative judicial pronouncements brought to bear on the subject by the parties need to be understood and applied. For a start, K.R. Lakshmanan instructs that when a game of skill is distinct from a game of chance, on the preponderance of the skill element involved, the activity would be protected by Article 19(1)(g) of the Constitution and competitions involving games of skill have to be regarded as business activities. 102. A pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be evident from the words wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes, in money or otherwise… . 105. Again, since Section 11 of the Act does not apply the operation of such provision to Section 4 thereof, there is a further contradiction. By virtue of Section 4(a)(1)(vi) of the Act, despite betting being involved in course of the playing of a game, it may be possible to contend that no offence would have been committed if the game indulged in was primarily a game of skill. That ought to be the interpretation of Section 4(1)(a) of the Act on the basis of the previous judicial pronouncements since Clause (vi) of sub-section (1) has, per force, to be restricted to a game of chance and not applied to a game of skill. Thus, despite no offence under Section 4(1) of the Act of 1930 being made out for playing or participating in a game of skill, if any betting and wagering-within the meaning of such expression as indicated in the Explanation to Section 3(b) of the Act-is involved in a game of skill, by virtue of Sections 8 and 9 of the Act an offence is made out of the same activity. As a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onality, though high authorities command that proportionality must instruct any legislative action if it seeks to curb any right guaranteed by the Constitution. 110. There is no doubt that the activity of gambling and the inextricable element of betting involved therewith has a deleterious impact on certain individuals and can even be ruinous. So much is accepted. The immediate question that arises is whether it was necessary to go the distance that the Amending Act has charted out to completely stultify and negate skill altogether. If, prima facie, the impugned legislation is seen to impose restrictions or altogether curb the exercise of skill in a particular domain, the onus is on the State to justify not only the need therefor but also the extent thereof. No attempt has been made in such regard apart from the anecdotal reference to some suicides and the subjective perception of the evil of addiction. 111. Even if there was some material before the Assembly, whether or not any discussion was held in such regard, the same may have gone some distance in the State discharging its onus and the court yielding to the wisdom of the legislature in a matter pertaining to the larger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a stake or for any prize. 114. There appears to be a little doubt that both rummy and poker are games of skill as they involve considerable memory, working out of percentages, the ability to follow the cards on the table and constantly adjust to the changing possibilities of the unseen cards. Poker may not have been recognised in any previous judgment in this country to be a game of skill, but the evidence in such regard as apparent from the American case even convinced the Law Commission to accept the poker as a game of skill in its 276th Report. 115. The present matter does not turn merely on the two games named in Section 3-A of the amended Act being regarded as games of skill. The absurdity of the amended provisions has more to do with all forms of games-where games must be understood to be distinct from gaming, whether in the ordinary parlance or as per the convoluted meaning ascribed to it in the impugned legislation-being prohibited in cyberspace, if played for any prize or stake whatsoever. The cause for bringing the amendments does not appear to have any nexus with the effect that has resulted thereby; and that, in essence, is the unreasonableness and grossly dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t I and Entries 10 and 15 in List II. 118. It is in such light that Betting and gambling in Entry 34 of the State List has to be seen, where betting cannot be divorced from gambling and treated as an additional field for the State to legislate on, apart from the betting involved in gambling. Since gambling is judicially defined, the betting that the State can legislate on has to be the betting pertaining to gambling; ergo, betting only on games of chance. At any rate, even otherwise, the judgments in the two Chamarbaugwala cases and in K.R. Lakshmanan also instruct that the concept of betting in the Entry cannot cover games of skill. Although the State could contend with some degree of justification that its legislative competence extends beyond Entry 34 by drawing on, for instance, Entries 1, 26 or 33, in such event, the State should have discharged the burden of establishing proportionality. For reasons detailed in preceding paragraphs, by imposing a wide-ranging blanket ban, the State has completely failed to meet the least intrusive measure test and, therefore, the impugned amendment falls foul of Article 19(1)(g) of the Constitution. 119. In the State bringing in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich part of the amendments the legislature would have intended to be retained as valid even if the legislature was aware that some parts thereof were invalid. In fine, it must be said that the Amending Act in its application to the Act of 1930 is so disproportionate to the objects that it sets out to achieve that no meaningful part of it-even a sliver-can be reasonably allowed to be retained or upheld as valid. 123. Accordingly, the impugned Part II of the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 (Act 1 of 2021), which amends the Tamil Nadu Gaming Act, 1930, is declared to be ultra vires the Constitution in its entirety and struck down as a consequence. Nothing herein will prevent an appropriate legislation conforming to the constitutional sense of propriety being brought in the field of betting and gambling by the State. 124. W.P. Nos. 18022, 18029, 18044, 19374, 19380 of 2020, 7354, 7356 and 13870 of 2021 are allowed as indicated above. As a consequence, W.M.P. Nos. 22409, 22411, 23962, 22389, 22391, 23398, 22400, 22370, 22372, 22373, 22374, 22404, 22408, 23964, 23965, 23969, 23970, 23971 of 2020, 7968, 7976 and 7983 of 2021 are closed. Whatever the financia ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
