This article is written by U. Sai Sahithi Sri, A 1st Year Student, B.A. LL.B. at Symbiosis Law School, Hyderabad
Introduction
Law is something based on which the society runs, without law, there cannot be smooth functioning of society as well as for any corporate bodies. In this modern world, there is constant competition among the countries for their development and India being a developing country is witnessing huge changes in many of its sectors as to progress in its path of development. Where there is progress there is a scope for compromising of rights of people. To make sure that development doesn’t infringe public interest; laws are required to ensure its smooth running.
Recently, there is a lot of developments in the gaming sector and it's having a booming business in India. In this case, laws are required to regulate them to ensure that they do not violate the public interest. Gaming or Gambling laws in India are centred around the concept of Game of Chance and Game of Skill.[1] Gaming and Gambling are somewhat similar, these days many games include gambling features in them. The difference between gaming and gambling is, in the case of the latter the outcome is achieved by chance whereas in the former it is a skill. At present, India does not have any unified law for gaming. The constitution of India bestowed its power upon the states to make their gambling laws. It means that there are different laws for each state, for ex- Andhra Pradesh, Tamil Nadu and few other states have blocked few online games. Games like the game of bridge, poker and rummy are expelled from the meaning of gambling in West Bengal. In Kerala rummy is exempted from gambling if no side-betting is involved. On the other hand, Sikkim and Nagaland require a license for online games.
Laws regarding Gambling, Casino, Lottery and others-
In some states gambling laws are continued to be modelled upon pre-Independence laws like the Public Gambling Act, 1867 which is not properly enough to deal with modern forms of gambling. This act is a central legislation that aims at controlling gambling, this act also mentions that game of skill doesn't fall under the purview of gambling whereas a game of chance is gambling and it is illegal. For instance, this law mentions the games being played in a 'common gaming house' which is a physical space or enclosure but does not expressly mention the online form of playing. Sikkim and Nagaland were the only states which framed specific laws for online gambling.
As each state has the power to enact its separate laws it has resulted in a lack of uniformity in gambling laws. In the case of gambling, all the laws which were enacted were either pre-independence laws or before the start of internet gaming. States like Sikkim, Nagaland, Telangana and few others enacted their laws for regulating gambling and a few of them subsequently modified their laws to include online gambling as well.
In India, casinos are controlled by gambling legislations for example; gambling is permitted to a limited extent in five-star hotels provided by a license according to the gambling legislation of Sikkim, Goa and Daman & Diu.[2] In the case of lotteries, they have been barred from the ambit of gambling and separate laws are enacted to it. In the case of Dr K.R. Lakshmanan v. State of Tamil Nadu (1996)[3], it was held that horse racing falls under the category of the game of skill because here the result is predicted by the assessment of all the facts related to the jockey and the horse and hence it cannot be a part of Gambling. In the case of Poker, to date, there is confusion if it is a game of chance or skill but in many instances, it was considered to be illegal. Hence, to make it a game of skill certain sites have removed the luck of draw element from the game which made the skills of the player an important one in determining the outcome of the game.
These days, Dream 11 fantasy sports games are popularly increasing and a question is raised whether it is a game of chance or a game of skill. In this type of games users draft fantasy teams based on some pre-conditions from a selective catalogue of players who are planned to play live games on a particular day. Then, to enter into a contest its entry fee has to be paid by the users and enter a pool for allocation among the users after removal of a certain fee by fantasy sports games providers (the App).[4] Here the users form their teams based on their knowledge, attention and experience related to that relevant sport. Hence, the high court of Haryana and Punjab and Bombay high court based upon the above facts held that this kind of fantasy sport is a game of skill.
These days’ online games are rapidly increasing which are like online gambling, social and casual games etc…. Casual games refer to arcade games, card or board games and puzzle games etc….And the idea of these games is not to gamble anything. Casual gaming is also done through social media platforms like Facebook which is considered one of the world's largest online gaming platforms. Prize Competition laws might get applicable to Casual games which are based upon combination, building, arrangement of words, numbers etc…
Issue of Obscenity-
An important issue that is arising is the presence of obscene content in some gaming apps. This kind of content is offensive under the obscenity and pornographic laws in India. The Indian Penal Code (IPC) and Information Technology Act, 2008[5] (IT Act, 2008) penalizes the proclamation of obscene content. According to the IPC and the IT Act, 2008 any stuff which is salacious or appeals to the licentious interest or which may dishonour and corrupt persons, is considered obscene. In this case, the court has come up with few directions based on which a game can be evaluated whether it is obscene or not. They are-
· In totality, if the work appeals to voyeuristic interest
· If the work is Patently offensive
· In totality, if the work lacks, artistic, serious literary, scientific or political value.[6]
Not only might the above factors, but the court can also even take other factors based on the situation of the case. As per both of these legislations, there can be a punishment of imprisonment from three to seven years, or a fine in the scope of INR 0.5 million to INR 1 million or both, which might increment on account of repeated perpetrators.[7] When obscene material is made available to young people i.e. under the age of 20 years, the further penalty can be attracted under the IPC.
Laws Regarding Action and Violence Based Games-
Action-oriented games such as Grand Theft Auto, PUBG and others specially attract young gamers. Sometimes these games might show a negative influence on children and they might get addicted to such influences. For example- PUBG led many youngsters to kill themselves because they were scolded by their parents to stop playing that game. It can be understood how addictive PUBG is and how teenagers are becoming addicted to it. In another instance, a game called Blue Whale Challenge was released which used to have a series of tasks to be completed by the players. Its last task was to commit suicide and many of the players who were playing this game ended up committing suicide across the world including India. Later on, a writ petition was filed in Madras High Court seeking it to provide a proper means to stop this game. Later, few instructions were issued by the court to the central and state governments to ban this game and even Supreme Court labelled it as a National Problem in the case of Sneha Kalita vs. Union of India.[8]
Even So, the case got dismissed in November 2017, when a report was submitted by the ministry of electronics and Information Technology stating that it was not feasible to stop the game. Further, the ministry of electronics and information technology issued notice to Google, Facebook and other social media platforms to disable the game and block access to it.
Foreign Direct Investment (FDI) in the case of Gambling Industry-
As maintained by FDI policy, FDI is forbidden to enter into organizations engaged in the lottery which can be either government or private and online lotteries etc…The same thing stands applicable even in the case of betting, casinos and gambling etc… All these expressions like the lottery, betting, and gambling are not characterized under FDI strategy. It was elucidated that in the case of gambling, betting and lottery sectors, both foreign investment and foreign technology is prohibited in any form of collaboration.[9] This strategy also forbids collaborations of foreign technology in any form which includes authorizing for franchise, trademark, brand name, management contract for lottery business and gambling and betting activities. Therefore agreements are to be carefully structured between Indian and foreign entities for conducting any gambling/gaming business to avoid any risks under the FDI Policy.[10] These days there is a huge flow of FDI in entities that offer skill-based games like fantasy sports, rummy etc…
Conclusion-
India is a developing country and now it’s achieving new heights in technology but laws are also required to ensure that these heights don't violate the public interest. The gaming industry is rapidly increasing in India and many kinds of gaming modes and games are evolving. Now, it’s the need of the hour that the central government comes with a unified gaming law for the whole country binding every state with it. This new law should address all physical and online games, Gambling and Lottery etc…It should also lay proper directions through which authorities can ban harmful games and it should also protect the interest of players who take part in these games.
Specific laws have to be enacted which consist of certain guidelines based on which a game has to be evaluated whether it is harmful or not. After getting tested those games have to be released in the country which is dangerous free and violation of such law should be penalized. As discussed above, these days there is a huge surge of FDI in fantasy sports games though it is not allowed in gambling or lotteries. To make it easy the government has to come up with laws that can support and increase such flow of FDI in fantasy sports which can aid in attaining global exposure to our fantasy sports gaming. To achieve this suitable laws are to be enacted to allow FDI in fantasy sports.
[1] Venky Vembu, Is cricket a game of skill or a game of chance?, Is cricket a game of skill or game [ Jan. 4, 2016],https://www.thehindubusinessline.com/.
[2]NishithDesai.Com, http://www.nishithdesai.com/ (Last Visited on Aug 14, 2021).
[3] Dr K.R. Lakshmanan v. State of Tamil Nadu, AIR 1996 SC 1153.
[4] Dignath Raj Sehgal, What constitutes a game of skill and a Game of Chance, What Constitutes a Game of.Blog [Aug 14, 2021, 4:30PM],https://blog.ipleaders.in/constitutes-game-skill-game-chance/.
[5] Information Technology Act, 2008, No. 21, Acts of Parliament, 2008 (India).
[6] NishithDesai.Com, http://www.nishithdesai.com/ (Last Visited on Aug 14, 2021).
[7] Sneha Sen, All you need to know about Online Gaming Laws in India, All You Need To Know About [Mar. 22, 2021], https://www.ourlegalworld.com/all-you-need-to-know-about-online-gaming-laws-in-india/.
[8] Sneha Kalita vs. Union of India, Writ Petition (Civil) No.943/2017,(SC)
[9] Helpline Law, https://www.helplinelaw.com/ (Last visited Aug. 15, 2021).
[10] NishithDesai.Com, http://www.nishithdesai.com/ (Last Visited on Aug 14, 2021)
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