By Ritisha Choudhary*

INTRODUCTION

Digitisation has made everything within reach and available at the fingertips. The games that one seeks to play are not just limited to fields and tracks or boards, but have acquired a digital status and are played throughout the globe. This advancement has indeed invited some ill practices such as betting and gambling.

Betting and gambling have been a rampant problem in the field of fantasy sports. These games are played not merely on the basis of skills but also chance thus, making it a game of chance. Thus, it is safe to say, fantasy sports are similar to wagers which makes them illegal.

The Public Gambling Act, 1857 governed the matters of gambling and betting which fell in the ambit of State list thus, giving states the powers to make laws exclusively. One such legislation was passed by the state of Tamil Nadu named, the Tamil Nadu Gambling and Police Laws (Amendment) Act, 2021. The Act was challenged as it challenged the original legislation and bypassed the laws laid down as precedents by various courts including the Supreme Court.

MAJOR CHANGES IN THE ACT

A substantial change was made to the definition of the word ‘gaming’. The new definition is expansive and prohibits betting and wagering in cyberspace.  Introduction of Section 3-A, which prohibits wagering and betting in cyberspace games. Further, the Act replaced Section 11. Earlier the section exempted games of ‘mere skill’ but now if the games of skill are played for wager, money or bet, they shall be encompassed in the prohibited list.

The abovementioned changes were challenged before the Madras High Court in the case of Junglee Games India Private Limited v. State of Tamil Nadu & Ors (2021 SCC OnLine Mad 2762).

OPINION OF THE COURT

The newly amended Act prohibits all the games in the cyberspace including the game of skills if played for bet, wager, money or any other stake. The state contended the validity of the amended Act on the grounds of morality.

As per the Statement of Objects and Reasons of Amendments, playing addictive online games has grown in popularity in recent years. Innocent people were defrauded, and suicides were reported. It was agreed that prohibiting wagering and betting in the cyberspace was a necessity to prevent such occurrences and safeguard innocent people from the dangers of online gambling.

The amended Act was primarily challenged by the petitioner on the ground that the Act prohibits the game of skills if played for money, bet or any other stake which blatantly bypasses the law laid down by the Supreme Court which has considered it as a business activity under Article 19(1)(g) of the Indian Constitution.

The High Court observed that the legislation failed to pass the ‘least intrusive test’. As per the test, if the government passes a law restricting a citizen’s fundamental rights, it must use “the least restrictive ways” to achieve its aim. Thus, the High Court found the legislation to be violative of Article 19(1)(g) of the Indian Constitution. The Court further said that the state has put a blanket ban through this amendment without providing any alternative which is very arbitrary, unreasonable and blatantly violative of the precedented laws given by the courts including the Supreme Court.

Earlier poker was considered a game of chance and not skill but later as per the 276^th Law Commission Report, it was considered a game of skill. The court went forward stating that Rummy and Poker are not merely games of chance as they require a considerable amount of memory to keep a track of cards and thus, involves usage of intellect hence, making it a game of skill. Thus, in the opinion of the Madras High Court, the Act is excessive, disproportionate and violative of the right to practice any profession as per Article 19(1)(g) of the Indian Constitution.

SUPREME COURT ON FANTASY SPORTS

Upholding the judgment of Rajasthan High Court in the case of Chandresh Sankhala v. State of Rajasthan & Ors (2020 SCC OnLine Raj 264), where it was observed that the game did not include any type of gambling because the outcome of the fantasy game did not depend on any particular team winning or losing on any given day,the Court reaffirmed the decision given by Bombay High Court in the case of Gurdeep Singh Sachar v. Union of India (2019 SCC OnLine Bom 13059) and Punjab & Haryana High Court in Varun Gumber v. Union Territory of Chandigarh and Others (2017 SCC OnLine P&H 5372), where it was held that unlike betting, fantasy sports did not rely on any team’s performance in the actual world to determine the winning or losing.The Supreme Court has recognised the online fantasy games offered by Dream 11 as a ‘sport of skill’ and not merely a ‘sport of chance’ dismissing the Special Leave Petition submitted that alleged the fantasy games offered by Dream 11 are not games of skill and amount to wagering, gambling and betting by an order passed by Division Bench of Justice RF Nariman and Justice BR Gavai.

The coram ascertained that the matter is not new thus, calling it res integra i.e., it was not examined as it had already been brought in front of the court earlier by referring to the judgment of the Bombay High Court and the Punjab & Haryana High Court. Thus, the Special Leave Petition stands vitiated and the fantasy games offered by Dream 11 are legal.

CONCLUSION

The order of the Supreme Court and the judgment of the Madras High Court has cleared the ambiguity regarding the legal status of the online fantasy games. Further, these have settled the debate of, what constitutes a game of skill and a game of chance. This was crucial as the judgments have directly impacted the status of these games and have protected the Right to practice any profession under Article 19(1)(g) of the Indian Constitution.

The judgment is a victory in itself. Had the amendment not been challenged, every game which acknowledged the efforts of the players by appreciating them by giving trophies, cash prizes etc, would have been penalised in the name of gambling and wagering, thus defeating the purpose and spirit of sports in the name of competition. Further, it would have refused to acknowledge the Asian Games, Olympics, IPL etc, as these competitions and events award the winners with trophies and medals.

Not only this, the judgment has protected online gaming and the nuances surrounding it thus, giving it an opportunity to an already expanding field which is creating employment and promoting the spirit of sport. 

*Ritisha is a 4th year student at the University of Petroleum and Energy Studies, Dehradun.