India: Online Gaming And Gambling Laws In India

Last Updated: 30 October 2014

Article by Vinay Vaish, Partner, Vaish Associates Advocates
Vaish Associates Advocates
At present gambling in India is regulated amongst others, by the Public Gambling Act
("Gambling Act") constituted in the year 1867, which extends to the United Provinces, East
Punjab, Delhi and the Central Provinces and specifically prohibits public gambling and
running or being in charge of a common gaming house.
In addition to the aforesaid, the state legislators are, vide Entry No. 34 of List II (State List)
of the Seventh Schedule of the Constitution of India, 1950 ("Constitution"), given exclusive
power to make laws relating to betting and gambling. The applicability of the Gambling Act,
for the purpose of any particular state stands repealed by virtue of the specific state enactment
so promulgated in respect of the subject matter of betting and gambling, by virtue of the
aforementioned provisions of the Constitution.
As a consequence of the aforementioned state legislations, any individual/entity intending to
engage in any gaming activities, with or without stakes would have to comply with the
provisions of the enactment/ legislation in force across India in various states.
At present the state legislature of Delhi has enacted the Delhi Public Gambling Act, 1955
("Delhi Gambling Act") which prohibits gaming in the union territory of Delhi, but excludes
from its purview the "games of mere skill" wherever played1. By virtue of the provisions of
the Delhi Gambling Act, the applicability of the Gambling Act to the union territory of Delhi
stands repealed2.

GAME OF SKILL V. GAME OF CHANCE

Similarly, as in the State of Delhi, the State of Goa has made special enactments for the
purpose of allowing gambling. The only State to allow on-line Gaming is the State of Sikkim.
However, there are certain restrictions. In India, the enactments essentially allow such Games
to be played on line, which are games of skill.
Various courts in India have examined the difference between the game of skill and game of
chance and in order to determine what constitutes gaming as defined in various state
enactments (i.e. gambling); it is imperative to understand the difference between a "game of
skill" and a "game of chance". For this purpose, it will be interesting to examine the
following Indian judicial pronouncements:
In State of Bombay v. R. M. D. Chamarbaugwalal3, the Supreme Court of India ("Apex
Court") held that competitions (games) where success depends on a substantial degree of
skill will not fall into category of 'gambling' (i.e. gaming as defined under state enactments);
and despite there being an element of chance, if a game is predominantly a game of skill, it
would nevertheless be a game of "mere skill".
In State of Andhra Pradesh v. K. Satyanarayana & Ors4, the Apex Court while holding
that the card game "Rummy" is not a gambling activity stated that "Rummy requires 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. It is mainly and preponderantly a game
of skill."
In M.J. Sivani & Ors. v. State of Karnataka5, the Apex Court observed, "Even a skilled
player in a game of mere skill may be lucky or unlucky, so that even in a game of mere skill
chance must play its part. But it is not necessary to decide in terms of mathematical precision
the relative proportion of chance or skill when deciding whether a game is a game of mere
skill. When in a game the element of chance strongly preponderates, it cannot be game of
mere skill. Therefore, it is not practicable to decide whether particular video game is a game
of skill or of mixed skill and chance. It depends upon the facts, in each case."
The Apex Court again delved into the aspect pertaining to what constitutes a game of skill in
Dr. K.R. Lakshmanan v. State of Tamil Nadu6, where it stated "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. No
human mind knows or can know what it will be until the dice is thrown, the wheel stops its
revolution or the dealer has dealt with the cards. 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. Golf, chess and even Rummy are considered to be games of
skill. The courts have reasoned that there are few games, if any, which consist purely of
chance or skill, and as such a game of chance is one in which the element of chance
predominates over the element of skill, and a game of skill is one in which the element of skill
predominates over the element of chance. It is the dominant element - "skill" or "chance" which determines the character of the game."
From the aforesaid, judgments, it can be concluded, that what is allowed in India is only a
game of skill and for a game to be considered as a game of skill, the mechanics (nature of the
game, mode of playing, rules etc.) of the game should clearly reflect that the requirement of
skill preponderates the element of chance and wherein success depends principally upon
superior knowledge, training, attention, experience and adroitness of the player. In addition to
which, it can be concluded that "games of skill" do not come within the purview of a majority
of state gambling enactments, thereby meaning, that playing games of skill for stakes in the
physical form, would not be treated as an act of gaming (as defined in such enactments).

ONLINE GAMING
Sikkim is so far the only state in India which has enacted a statute pertaining to online
gaming i.e. Sikkim Online Gaming (Regulation) Act, 2008 ("Sikkim Gaming Act"). In terms
of the Sikkim Gaming Act, an interested person can obtain a "license" for the purpose of
conducting online games such as Roulette, Black-jack, Pontoon, Puntobanco, Bingo,
Casino Brag, Poker, Poker dice, Baccarat, Chemin-de-for, Backgammon, Keno and
Super Pan 9.

As concluded above, games of skill played for stakes in the physical form, do not
come within the ambit of gaming (as defined in various state enactments); however to
ascertain whether the same status is accorded to games of skill played online, it has to
be seen whether there is a distinction between a game of skill and a game of chance.

The expression 'skill' has been defined by the Courts as an exercise upon known rules
and fixed probabilities of sagacity, which involves five parameters:
o learned or a developed ability,
o strategy,
o physical co-ordination,
o technical expertise, and
o knowledge.
Games like Rummy, Chess, Bridge, Billiards and Golf have been recognised by the courts in
India as games of skill.

The courts have held that Poker cannot be accepted as a game of skill; however it was
stated that it would be legal to play poker within the states which do not hold it as
illegal.

The Courts have also opined that that the degree of skill required in games played in a
physical form cannot be equated with those played online, as the degree of chance
increases in case of online games and the degree of skill used in playing these games
online is questionable. Hence, online games, even those requiring a high degree of
skill, conducted by gaming sites offering prize money and partaking a slice of the
winning hand are illegal in states which prohibit gambling.

Courts in India have also stated that such online gaming portals are essentially a
substitute for traditional casinos since websites operate as common gaming houses7
where members interact and place bets. Thus the company and its directors, agents,
players are liable to penal consequences.

It has been also held that conducting online games for profit cannot be included in the
scope of trade, business or commerce as envisaged under Article 19 (1) (g)8 of the
Constitution. Further, sports' betting is an offence in India and individuals earning
money from bets laid on games of skill do not have the constitutional protection of
Article 19(1) (g).

In view of the aforesaid, it is clear that only Games of skill and that too played in physical
form have been held by the courts to be valid and falling within the ambit of various
enactments, dealing with Gaming, in India. However, as far as, on-line Gaming is concerned,
the courts are of the view that on-line Gaming could not be compared to real game being
played and would, therefore, not be allowed until 'skill' test is passed by it.
Footnotes
1 Section 13 of the Delhi Public Gambling Act, 1955
2 Section 18 of the Delhi Public Gambling Act, 1955

3 AIR 1957 SC 699

4 AIR 1968 SC 825
5 1995 6 SCC 289
6 AIR 1996 SC 1153
7 The court placed reliance on the definition of "gaming house" in the Bombay Gambling Act as "any house,
room or place whatsoever, in which any instrument of gaming is kept or used for profit or gain of the person
owning, occupying using such house, room or place by way of charge for the use of such house, room or place
or otherwise howsoever."
8 Article 19(1)(g) of the Constitution provides to every Indian citizen the right of freedom to carry on any
occupation, trade or business, subject to reasonable restrictions.

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